Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event: (1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and (2) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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 (3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article Eight.
Appears in 2 contracts
Samples: Indenture (Western Resources Inc /Ks), Indenture (Western Resources Capital Ii)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 any Guarantor or to its creditors, as such, or to its assets, whether voluntary or involuntary, (b) any liquidation, dissolution or other winding winding-up of the Companyany Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any general assignment for the benefit of creditors or (d) any other marshalling of assets and or liabilities of the Companyany Guarantor, then and in any such event:
(1) the holders of all Guarantor Senior Indebtedness of such Guarantor shall be entitled to receive indefeasible payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all such Guarantor Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness before the Holders of the Securities are entitled to receive receive, pursuant to the Guarantee of such Guarantor, any payment or distribution of any kind or character (other than from the trust described in Section 9.01 or Section 9.04) by such Guarantor on account of principal any of (or premium, if any) or interest on the Securitiesobligations of such Guarantor under its Guarantee; and
(2) any payment or distribution of assets of the Company such Guarantor of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions subordination provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of 11 (other than from the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event trust described in Subsec- tion (a), (bSection 9.01 or Section 9.04) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 Guarantor Senior Indebted- ness Indebtedness of such Guarantor or their Representative representative or Representatives representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Guarantor 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, and other amounts due on or in connection with, the such Guarantor Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all such Guarantor Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 11.02, the Trustee or the any Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company such Guarantor of any kind or char- actercharacter, whether in cash, property Property or securities, including including, without limitation, by way of set-off or otherwise, in respect of any such payment or distribution which may be payable or deliverable by reason of the payment obligations of any Guarantor pursuant to its Guarantee (other indebt- edness of than from the Company being subordinated to the payment of the Securities, trust described in Section 9.01 or Section 9.04) before all Guarantor Senior Indebtedness of such Guarantor is indefeasibly paid in full or payment thereof provided forin cash, then and in such event such payment or distribution 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 such Guarantor for application to the payment of all such Guarantor Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all of such Guarantor Senior Indebtedness in full in cash or cash equivalentsor, as acceptable to the holders of such Guarantor Senior Indebtedness, any other manner, after giving effect to any concurrent payment or distribution to or for the holders of such Guarantor Senior Indebtedness. The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation Person or the liquidation or dissolution of the Company a Guarantor following the conveyance, transfer or lease of its properties Properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 5 shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company such Guarantor for the purposes of this Section 1102 Article 11 if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation Person which acquires by conveyance, transfer or lease such properties Properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article Eight5.
Appears in 2 contracts
Samples: Indenture (Brickman Group LTD), Indenture (Norcross Capital Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In Upon any payment or distribution of assets of the event of Issuer to creditors upon (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, Issuer or to its assets, or (b) any liquidation, dissolution or other winding up of the CompanyIssuer, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets and or liabilities of the CompanyIssuer, then and in any such event specified in (a), (b) or (c) above (each such event:, if any, herein sometimes referred to as a "Proceeding");
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due on or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Subordinated Securities are entitled to receive any 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 to Holders of the Subordinated Securities made in respect of any other Indebtedness of the Issuer subordinated to the payment of the Subordinated Securities, such payment or distribution being hereinafter referred to as a "Junior Subordinated Payment"), on account of the principal of (or premium, if any) or interest on the SecuritiesSubordinated Securities or on account of any purchase, redemption or other acquisition of Subordinated Securities by the Issuer, any Subsidiary of the Issuer, the Trustee or any Paying Agent (all such payments, distributions, purchases, redemptions and acquisitions, whether or not in connection with a Proceeding, herein referred to, individually and collectively, as a "Subordinated Securities Payment"); and
(2) any payment or distribution of assets of the Company Issuer of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders of the Subordinated Securities or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven(including, including without limitation, any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (bJunior Subordinated Payment) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 Indebted- ness Indebtedness or their Representative representative or Representatives 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, and other amounts due on or in connection with, 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
(3) in . In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Subordinated Security shall have received in connection with any such payment or dis- tribution of assets of the Company of Proceeding any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, Subordinated Securities Payment before all Senior Indebtedness is paid in full or payment thereof provided forfor in cash, then and in such event such payment or distribution Subordinated 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 Company Issuer for application to the payment of all Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 a payment or distribution of stock or securities of the Issuer provided for by a plan of reorganization or readjustment authorized by an order or decree of a court of competent jurisdiction in a reorganization proceeding under any applicable bankruptcy law or of any other corporation provided for by such plan of reorganization or readjustment which stock or securities are subordinated in right of payment to all then outstanding Senior Indebtedness to substantially the same extent, or to a greater extent than, the Subordinated Securities are so subordinated as provided in this Article. The consolidation of the Company Issuer with, or the merger of the Company Issuer into, another corporation Person or the liquidation or dissolution of the Company Issuer following the conveyance, conveyance or transfer of all or lease substantially all of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight Nine shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Proceeding for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Issuer is merged or the corporation Person which acquires by conveyance, conveyance or transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth in Article EightNine.
Appears in 2 contracts
Samples: Seventh Supplemental Indenture (Alcan Inc), Seventh Supplemental Indenture (Alcan Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In Upon any distribution of assets of the Company or the Guarantor (if the Securities are Guaranteed Securities) in the event of of:
(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 the Guarantor, as the case may be, or to its their respective creditors, as such, or to its their respective assets, or or
(b) any liquidation, dissolution or other winding up of the CompanyCompany or the Guarantor (if the Securities are Guaranteed Securities), whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or or
(c) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the CompanyCompany or the Guarantor (if the Securities are Guaranteed Securities), then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalentscash, before the Holders of the Securities are entitled to receive any payment on account of principal of (the Principal Amount, interest or premiumsuch other amounts as may be provided for in Section 2.3(a), if any) or interest on , in respect of the Securities; and
(2) any payment or distribution of assets of the Company or the Guarantor (if the Securities are Guaranteed Securities) of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions provisions of this Article ElevenXII, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness Debt of the Company or the Guarantor (if the Securities are - 52 - 61 Guaranteed Securities) being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness Indebtedness or their Representative representative or Representatives 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, and other amounts due on or in connection with, 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
(3) in . In the event that, notwithstanding the foregoing provisions of this SectionSection 12.2, the Trustee or the Holder of any Security shall have received receive any such payment or dis- tribution distribution of assets of the Company or the Guarantor (if the Securities are Guaranteed Securities) of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness Debt of the Company or the Guarantor (if the Securities are Guaranteed Securities) being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, and if such fact shall then have been made known to the Trustee as provided in Section 12.10, or, as the case may be, such Holder, then and in such event such payment or distribution 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 Company or the Guarantor (if the Securities are Guaranteed Securities) for application to the payment of all Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Indebtedness in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. For purposes of this Article XII only, the words "cash, property or securities," or any combination thereof, shall not be deemed to include shares of Capital Stock of the Company or the Guarantor (if the Securities are Guaranteed Securities) as reorganized or readjusted, or securities of the Company or the Guarantor (if the Securities are Guaranteed Securities) or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinated, at least to the extent provided in this Article XII with respect to the Securities, to the payment of all Senior Indebtedness which may at the time be outstanding; provided, however, that (i) Senior Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Indebtedness are not, without the consent of such holders, altered, in any manner adverse to such holders, by such reorganization or readjustment. The consolidation of the Company or the Guarantor (if the Securities are Guaranteed Securities) with, or the merger of the Company or the Guarantor (if the Securities are Guaranteed Securities) into, another corporation or the liquidation or dissolution of the Company or the Guarantor (if the Securities are Guaranteed Securities) following the conveyance, conveyance or transfer of all or lease substantially all of its properties and assets substantially as an entirety to another corporation person upon the terms and conditions set forth in Article Eight V shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company or the Guarantor (if the Securities are Guaranteed Securities) for the purposes of this Section 1102 12.2 if the corporation formed by such consolidation or into which the Com- pany Company or the Guarantor (if the Securities are Guaranteed Securities) is merged or the corporation person which acquires by conveyance, conveyance or transfer all or lease such properties and substantially all of the assets substantially as an entiretyof the Company or the Guarantor (if the Securities are Guaranteed Securities), as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth in Article Eight.V.
Appears in 2 contracts
Samples: Indenture (Aimco Properties Lp), Indenture (Aimco Properties Lp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of:
(1) the total or partial liquidation or a dissolution of (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 creditorsthe Co-Issuer (until the Company is converted into a corporation);
(2) a reorganization, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, insolvency, receivership of or similar proceeding relating to either Issuer or its Property; or
(c3) any an assignment for the benefit of creditors or any other marshalling marshaling of either Issuer's assets and liabilities of the Companyliabilities, then and in any such event:then
(1a) the holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or cash equiv- alents Cash Equivalents of all amounts due or to become due on or in respect of all such Senior IndebtednessIndebtedness (including interest accruing after, or provision shall be made which would accrue but for, the commencement of any proceeding at the rate specified in the applicable Senior Indebtedness whether or not a claim for such payment in cash or cash equivalents, interest would be allowed) before the Holders of the 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 from any defeasance trust created pursuant to Article VIII hereof and other than a payment or distribution in the form of Junior Securities) on account of principal of (or premium, if any, on) or interest on the SecuritiesSecurities or on account of the purchase or redemption or other acquisition of the Securities (including pursuant to an optional redemption or a Change of Control Offer or an Asset Disposition Offer); andhowever, the consolidation or merger of an Issuer or its liquidation or dissolution following the conveyance, transfer, lease, or other disposition of all or substantially all the properties and assets of the Company in compliance with Article IV or Section 3.18 shall not be deemed an insolvency or liquidation proceeding requiring the repayment of all of the Senior Indebtedness in full in cash or cash equivalents as a prerequisite to any payments being made to holders of Securities for the purposes of the subordination provisions of the Indenture;
(2b) any direct or indirect payment or distribution of assets Properties of each of the Company Issuers of any kind or character, whether in cash, prop- erty property or securitiessecurities (other than from any defeasance trust created pursuant to Article VIII hereof and other than a payment or distribution in the form of Junior Securities), by set-off or otherwise, to which the Holders or the Trustee Trustee, on behalf of the Holders, would be entitled but for the pro- visions provisions of this Article ElevenXI, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall will be paid by the Issuers 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 Indebted- ness Indebtedness or their Representative representative or Representatives 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, and other amounts due on or in connection with, the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents 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
(3c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall will have received any such payment or dis- tribution distribution of assets Properties of the Company of any kind or char- actercharacter, whether in cash, property or securities, including any such payment by set-off or distribution which may be payable otherwise, in respect of principal of (and premiums, if any, on) or deliverable by reason of interest on the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, Securities before all Senior Indebtedness is paid in full in cash or payment thereof provided forCash Equivalents, then and in such event such payment or distribution shall (other than a payment or distribution from any defeasance trust created pursuant to Article VIII hereof and other than a payment or distribution in the form of Junior Securities) will 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 for application to the payment of all Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation of the Company Issuers with, or the merger of either of the Company Issuers into, another corporation Person or the liquidation or dissolution of the Company Issuers following the sale, assignment, conveyance, transfer transfer, lease or lease other disposition of all or substantially all its properties and assets substantially as an entirety Properties to another corporation upon Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Section 3.18 or Article Eight shall IV hereof will not be deemed an insolvency or liquidation proceeding (requiring the repayment of all Senior Indebtedness in full as a dissolution, winding up, liquidation, reorganization, assignment for prerequisite to any payments being made to the benefit of creditors or marshalling of assets and liabilities of the Company Holders) for the purposes of this Section 1102 if the corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightSection.
Appears in 2 contracts
Samples: Indenture (Plains Resources Inc), Indenture (Plains Exploration & Production Co L P)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to Centennial, the Company Issuer or any Guarantor or to its creditors, as such, or to its their assets, or (b) any liquidation, dissolution or other winding winding-up of Centennial, the CompanyIssuer or any Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets and or liabilities of Centennial, the CompanyIssuer or any Guarantor (except in connection with the consolidation or merger of Centennial, the Issuer or any Guarantor or their liquidation or dissolution following the conveyance, transfer or lease of all of the properties and assets of the Parent Guarantor substantially as an entirety upon the terms and conditions described under Article Nine), then and in any such event:
(1) the holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect equivalents of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalentsfull, before the Holders of the Securities are will be entitled to receive any payment or distribution of any kind or character (other than any payment or distribution in the form of equity securities or subordinated securities of Centennial, the Issuer or any Guarantor or any successor obligor that, 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 Indenture (such equity securities or subordinated securities hereinafter being "Permitted Junior Securities") and any payment made pursuant to Article Five from monies or U.S. Government Obligations previously deposited with the Trustee) on account of principal of (of, or premium, if any) , or interest on the Securities; and;
(2) any payment or distribution of assets of Centennial, the Company Issuer or any Guarantor of any kind or character, whether in cash, prop- erty property or securitiessecurities (other than a payment or distribution in the form of Permitted Junior Securities and any payments made pursuant to Article Five from monies or U.S. Government Obligations previously deposited with the Trustee), by set-off or otherwise, to which the Holders of the Securities or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Indenture shall be paid by the 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 Indebted- ness Indebtedness or their Representative 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, representatives ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation of Centennial, the Company Issuer or any Guarantor with, or the merger of Centennial, the Company Issuer or any Guarantor into, another corporation Person or the liquidation or dissolution of Centennial, the Company Issuer or any Guarantor following the conveyance, transfer or lease of its all of the properties and assets of the Parent Guarantor substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight Nine shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of Centennial, the Company Issuer or any Guarantor for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which Centennial, the Com- pany Issuer or any Guarantor is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightNine.
Appears in 2 contracts
Samples: Indenture (Centennial Puerto Rico Operations Corp), Indenture (Centennial Puerto Rico Operations Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 any Guarantor or to its creditors, as such, or to its assets, whether voluntary or involuntary, (b) any liquidation, dissolution or other winding winding-up of the Companyany Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any general assignment for the benefit of creditors of any Guarantor or (d) any other marshalling of assets and or liabilities of the Companyany Guarantor, then and in any such event:
(1) the holders of Senior Indebtedness of such Guarantor shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all such Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness before the Holders of the Securities are entitled to receive receive, pursuant to the Guarantee of such Guarantor, any payment or distribution of any kind or character (other than a payment in the form of Permitted Junior Securities or from the trust described in Section 9.01 or Section 9.04) by such Guarantor on account of principal any obligations of (or premium, if any) or interest on the Securitiessuch Guarantor under its Guarantee; and
(2) any payment or distribution of assets of the Company such Guarantor of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such 11 (other than a payment in the form of Permitted Junior Securities or distribution which may be payable or deliverable by reason of from the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event trust described in Subsec- tion (a), (bSection 9.01 or Section 9.04) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 Indebted- ness Indebtedness of such Guarantor or their Representative representative or Representatives 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, and other amounts due on or in connection with, the such Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all such Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 11.02, the Trustee or the any Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company such Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including including, without limitation, by way of set-off or otherwise, in respect of any such payment or distribution which may be payable or deliverable by reason of the payment Obligations of any Guarantor pursuant to its Guarantee (other indebt- edness than a payment in the form of Permitted Junior Securities or from the Company being subordinated to the payment of the Securities, trust described in Section 9.01 or Section 9.04) before all Senior Indebtedness of such Guarantor is paid in full or payment thereof provided forin cash, then and in such event such payment or distribution 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 such Guarantor for application to the payment of all such Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all such Senior Indebtedness in full in cash or cash equivalentsor, as acceptable to the holders of such Senior Indebtedness, any other manner, after giving effect to any concurrent payment or distribution distribution, to or for the holders of such Senior Indebtedness. The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation Person or the liquidation or dissolution of the Company a Guarantor following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 5 or Section 10.06, as applicable, hereof shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company such Guarantor for the purposes of this Section 1102 Article 11 if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article Eightsuch Section 10.06.
Appears in 2 contracts
Samples: Indenture (Affinity Group Inc), Indenture (Affinity Group Holding, Inc.)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 creditorsassets, as such, whether voluntary or to its assetsinvoluntary from any source, or (b) any liquidation, dissolution or other winding 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 marshalling of assets and or liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents Cash Equivalents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in full in cash or cash equivalentsCash Equivalents to the satisfaction of the holders of Senior Indebtedness, before the Holders of the Securities are entitled to receive any payment or distribution of any kind or character from any source (other than a payment or distribution in the form of equity securities or subordinated securities of the Company or any successor obligor with respect to the Senior Indebtedness provided for by a plan of reorganization or readjustment that, in the case of any such subordinated securities, are subordinate 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 hereinafter being "Permitted Junior Securities")) on account of principal the Subordinated Obligations or on account of (the purchase or premium, if any) redemption or interest on the other acquisition of Securities; and
(2) any payment or distribution of assets of the Company of any kind or charactercharacter from any source, whether in cash, prop- erty property or securitiessecurities (other than a payment or distribution in the form of Permitted Junior Securities), including by way of set-off or enforcement of any guarantee or otherwise, to which the Holders Trustee or the Trustee Holders would be entitled to receive but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness Indebtedness or their Representative authorized representative or Representatives 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, and other amounts due on or in connection with, the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents Cash Equivalents of all Senior Indebtedness of the Company remaining unpaid, after giving effect to any concurrent payment or distribution distribution, or provision therefor to the satisfaction of the holders of the Senior Indebtedness, to or for the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee any Taxes that have been withheld or the Holder of deducted from any Security shall have received any such payment or dis- tribution of assets distribution in respect of the Company of Securities, or any kind Taxes that ought to have been withheld or char- acter, whether in cash, property or securities, including deducted from any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated that have been remitted to the payment of relevant taxing authority, shall not be considered to be an amount that a Holder or the Securities, before all Senior Indebtedness Trustee is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be paid over or delivered forthwith entitled to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or receive for the holders purposes of Senior IndebtednessSection 1202(2). The consolidation of the Company with, or the merger of the Company into, another corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer transfer, lease or lease other disposal of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Company is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer transfer, lease or leasedisposal, comply with the conditions set forth in Article Eight.
Appears in 2 contracts
Samples: Indenture (Regal Cinemas Inc), Indenture (Amc Entertainment Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 Guarantor or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the CompanyGuarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of or creditors or any other marshalling marshaling of assets and liabilities of the CompanyGuarantor, then and in any such event:
(1) event the holders of Senior Guarantor Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Guarantor Indebtedness, or provision shall be made for such payment in cash money or cash equivalentsmoney's worth, before the Holders of the Securities Guarantees are entitled to receive any payment under the Guarantees on account of principal of (or on, premium, if any) , or interest on the Securities; and
(2) Securities and to that end the holders of Senior Guarantor Indebtedness shall be entitled to receive, for application to the payment thereof, any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason in respect of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated Guarantees in any case or proceeding or similar event described in Subsec- tion (a)such case, (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtednessproceeding, for any such payment or distribution of securities which (i) are unsecureddissolution, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee or agent liquidation or other person making such payment winding up or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in event. 113 In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security in respect of the related Guarantee shall have received any such payment or dis- tribution distribution of assets of the Company Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Guarantor Indebtedness is paid in full or payment thereof provided for, 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 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 payment of all Senior Guarantor Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Guarantor Indebtedness in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders holder of Senior Guarantor Indebtedness. For purposes of this Article Eighteen only, the words "cash, property or securities" shall not be deemed to include shares of 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 are subordinated in right of payment to all Senior Guarantor Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Guarantees are so subordinated as provided in this Article Eighteen. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation Person or the liquidation or dissolution of the Company Guarantor following the conveyance, conveyance or transfer of all or lease substantially all of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company Guarantor for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation which acquires by conveyance, conveyance or transfer all or lease substantially all of such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth in Article Eight.
Appears in 2 contracts
Samples: Indenture (Thermo Electron Corp), Indenture (Thermo Electron Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 any Guarantor or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Companyany Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling marshaling of assets and liabilities of the Companyany Guarantor, or (d) any event described in Section 11.01(h) then and in any such event specified in clause (a), (b), (c) or (d) above (each such event:
(1, if any, herein sometimes referred to as a "Guarantor Proceeding") the holders of Guarantor Senior Indebtedness shall be entitled to receive or retain payment in full in cash or cash equiv- alents Cash Equivalents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities Junior Creditors are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securities, on account of any Obligations in respect of the Subsidiary Guarantee of such Guarantor (including any interest accruing on or after the filing of any Guarantor Proceeding, whether or not allowed in such Guarantor Proceeding) or on account of any purchase or other acquisition of Notes by set-off any Guarantor or otherwiseany Subsidiary of a Guarantor, or otherwise on account of any Junior Indebtedness, whether at maturity, by acceleration or demand for payment, or by filing or joining filing in a Proceeding (all such payments, distributions, purchases and acquisitions herein referred to, individually and collectively, as a "Guarantee Payment"), and to which that end the Holders or the Trustee would holders of Guarantor Senior Indebtedness shall be entitled but to receive, for application to the pro- visions of this Article Elevenpayment thereof, including any such payment or distribution Guarantee Payment which may be payable or deliverable by reason in respect of the payment Subsidiary Guarantee of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated such Guarantor in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in Guarantor Proceeding. In the event that, notwithstanding the foregoing provisions of this SectionSection 14.06, the Trustee or the Holder of any Security Junior Creditor shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, Guarantee Payment before all Guarantor Senior Indebtedness of such Guarantor is paid in full in cash or payment thereof provided forCash Equivalents, then and in such event such payment or distribution Guarantee Payment shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent bankruptcy or other Person person making payment or distribution of assets of such Guarantor for the Company for application to the payment of all Guarantor Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all the Guarantor Senior Indebtedness in full in cash or cash equivalentsCash Equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Guarantor Senior Indebtedness. For purposes of this Section 14 only, the words "any payment or distribution of any kind or character, whether in cash, property or securities" shall not be deemed to include a payment or distribution of stock or securities of any Guarantor provided for by a plan of reorganization or readjustment authorized by an order or decree of a court of competent jurisdiction in a reorganization proceeding under any applicable bankruptcy law or of any other corporation provided for by such plan of reorganization or readjustment which stock or securities are subordinated in right of payment to all then outstanding Guarantor Senior Indebtedness to substantially the same extent as, or to a greater extent than, the Subsidiary Guarantees of the Guarantors are so subordinated as provided in this Section 14, if such plan has been approved by holders of Designated Senior Indebtedness. The consolidation of the Company any Guarantor with, or the merger of the Company any Guarantor into, another corporation Person or the liquidation or dissolution of the Company any Guarantor following the conveyance, conveyance or transfer of all or lease substantially all of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight Section 14.03 shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Guarantor Proceeding for the purposes of this Section 1102 14.06 if the corporation Person formed by such consolidation or into which the Com- pany such Guarantor is merged or the corporation Person which acquires by conveyance, conveyance or transfer or lease such properties and assets substantially as an entiretyassets, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth in Article EightSection 14.03.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive Upon any payment on account of principal of (or premium, if any) or interest on by the Securities; and
(2) any payment Guarantor or distribution of assets of the Company Guarantor of any kind or character, whether in cash, prop- erty property or securities, to creditors upon any dissolution or winding-up or liquidation or reorganization of the Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all amounts due upon all Senior Indebtedness of the Guarantor shall first be paid in full, or payment thereof provided for in money in accordance with its terms, before any payment is made by setthe Guarantor on account of any Indenture Obligations; and upon any such dissolution or winding-off up or otherwiseliquidation or reorganization, to any payment by the Guarantor, or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, which the Holders of the Convertible Debentures or the Trustee would be entitled but to receive from the Guarantor, except for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)Article, shall be paid by the liquidating Guarantor or by any receiver, trustee or in bankruptcy, liquidation trustee, agent or other person Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee by the Holders of the Convertible Debentures or otherwiseby the Convertible Debenture Guarantee Trustee or the Indenture Trustee hereunder or under the Indenture if received by them or it, directly to the holders of Senior Indebted- ness Indebtedness of the Guarantor (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders, as calculated by the Guarantor) or their Representative representative or Representatives representatives, or to the trustee or trustees under any indenture under pursuant to 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 ofas their respective interests may appear, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness 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 pay such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full full, in cash money or cash equivalentsmoney'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 Convertible Debentures, the Convertible Debenture Guarantee Trustee or to the Indenture Trustee. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Convertible Debenture Guarantee Trustee, the Indenture Trustee or any Holder of the Convertible Debentures before all Senior Indebtedness of the Guarantor 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 Guarantor, for application to the payment of all Senior Indebtedness of the Guarantor, 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 Guarantor as reorganized or readjusted, or securities of the Guarantor or any other corporation provided for by a plan of reorganization or readjustment -18- 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 Guarantees are so subordinated as provided in this Article. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation Person or the liquidation or dissolution of the Company Guarantor following the conveyance, conveyance or transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight V shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company Guarantor for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation Person which acquires by conveyance, conveyance or transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth in Article Eight.V.
Appears in 1 contract
Samples: Convertible Debenture Guarantee Agreement (Weatherford International LTD)
Payment Over of Proceeds Upon Dissolution, Etc. In case of the event pendency of (a) any insolvency or bankruptcy case or proceeding, or any receivership, insolvency, liquidation, reorganization bankruptcy, reorganization, arrangement, adjustment, composition or other similar case or judicial proceeding in connection therewith, relative to the Company or (each such event, if any, herein sometimes referred to its creditors, as such, or to its assets, 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 marshalling of assets and liabilities of the Companya "Proceeding"), then and in any such event:
(1) the holders of Senior Indebtedness Debt shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all such Senior IndebtednessDebt, or provision shall be made for such payment in cash or cash equivalentsequivalents or otherwise in a manner satisfactory to the holders of Senior Debt, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) retain any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, securities (including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness Debt of the Company being (including any series of the Securities) subordinated to the payment of the Securi- ties (exceptSecurities, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution being hereinafter referred to as a "Junior Subordinated Payment"), on account of securities which principal of (ior premium, if any) are unsecured, or interest (iiincluding any Additional Interest) have an average life and final maturity no shorter than on the average life and final maturity Securities or on account of the purchase or other acquisition of Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee Company or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly any Subsidiary and to that end the holders of Senior Indebted- ness or their Representative or Representatives or Debt shall be entitled to receive, for application to the trustee payment thereof, any payment or trustees under distribution of any indenture under kind or character, whether in cash, property or securities, including any Junior Subordinated Payment, which may be payable or deliverable in respect of the Securities in any instruments evidencing such Proceeding; provided, however, that holders of Senior Debt shall not be entitled to receive payment of any such amounts to the extent that such holders would be required by the subordination provisions of such Senior Indebtedness may have been issued, ratably according Debt to pay such amounts over to the aggregate amounts remaining unpaid obligees on account trade accounts payable or other liabilities arising in the ordinary course of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in Company's business. 77 70 In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the SecuritiesJunior Subordinated Payment, before all amounts due or to become due on all Senior Indebtedness is Debt are paid in full or payment thereof is provided forfor in cash 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 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 for application to the payment of all amounts due or to become due on all Senior Indebtedness Debt remaining unpaid unpaid, to the extent neces- sary necessary to pay all amounts due or to become due on all Senior Indebtedness Debt in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt; provided, however, that holders of Senior Debt shall not be entitled to receive payment of any such amounts to the extent that such holders would be required by the subordination provisions of such Senior Debt to pay such amounts over to the obligees on trade accounts payable or other liabilities arising in the ordinary course of the Company's business. 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 corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer sale of all or lease substantially all of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight VIII shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Proceeding for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Company is merged or the corporation Person which acquires by conveyance, transfer or lease sale such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer or lease, sale comply with the conditions set forth in Article EightVIII.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, or (b) any liquidation, dissolution or other dissolution, winding up or reorganization of the Company, Company (whether voluntary or involuntary and whether or not involving in insolvency or bankruptcyreceivership proceedings, or (c) any upon an assignment for the benefit of creditors or any other marshalling of assets and or liabilities of the Company, then and in any Company or otherwise)(each such event, if any, herein sometimes referred to as a "Proceeding"), the Company and each Holder of a Security, by his acceptance thereof, covenant and agree that:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision Debt shall first be made for such payment paid in cash or cash equivalentsfull, before the Holders of the Securities are entitled to receive any payment on account of or distribution is made upon the principal of (or premium, if any) or interest on the Securities; and;
(2) any payment or distribution of assets of the Company or from the estate created by the commencement of any kind or charactersuch Proceeding, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or of the Trustee Securities would be entitled but for the pro- visions provisions of this Article Eleven, (including any such payment or distribution which may be payable or deliverable by reason to Holders of the payment Securities made in respect of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (exceptSecurities, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (ibeing hereinafter referred to as a "Junior Subordinated Payment") are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid or delivered by the Company or 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 or otherwise, directly to the holders of Senior Indebted- ness Debt or their Representative representative or Representatives representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness Debt may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal ofas their respective interests may appear, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment pay in full in cash or cash equivalents of all Senior Indebtedness Debt remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior IndebtednessDebt, before any payment or distribution is made to the Holders of the Securities; and
(3) in the event thatthat any payment or distribution of cash, notwithstanding the foregoing provisions of this Section, the Trustee property or securities shall be received by the Holder of any Security shall have received any such payment in contravention of subsection (1) or dis- tribution (2) of assets of the Company of any kind or char- acter, whether in cash, property or securities, this Section 13.2 (including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, Junior Subordinated Payment) before all Senior Indebtedness Debt is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be held for the benefit of and paid over to the holders of such Senior Debt or delivered forthwith their representative or representatives or to the trustee in bankruptcyor trustees under any indenture under which any instruments evidencing any 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 payment of all Senior Indebtedness remaining unpaid to the extent neces- sary necessary to pay in full all Senior Indebtedness in full in cash or cash equivalentsDebt remaining unpaid, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt. The Company shall give prompt written notice to the Holders of the Securities of any dissolution, winding-up, liquidation or reorganization of the Company or any assignment for the benefit of creditors. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyancesale, transfer conveyance or lease of all of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 if the such other corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyancesale, transfer conveyance or lease, comply with expressly assume the conditions set forth in Article Eightdue and punctual payment of the principal of and interest on the Securities, according to their tenor, and the due and punctual performance of every covenant of the Securities and this Indenture on the part of the Company to be performed or observed.
Appears in 1 contract
Samples: Junior Subordinated Indenture (Owens Corning Capital Ii)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets of the Company any Guarantor of any kind or character, whether in cash, prop- erty or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including to creditors upon any such payment total or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securitiespartial liquidation, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of such 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 Debt shall first be paid in full in cash or Cash Equivalents, or such payment duly provided for to the satisfaction of the Company holders of Senior Debt, before any payment or distribution of any kind or character (other than payments by a trust previously established pursuant to Article Eight) is made on account of 295 -115- any Obligations on the Notes, or for the purposes acquisition of any of the Notes for cash or property or otherwise, other than payments or distributions in Junior Securities. 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 (other than payments by a trust previously established pursuant to Article Eight), whether in cash, property or securities, other than payments or distributions in Junior Securities, to which the Holders of the Notes or the Trustee under this Indenture would be entitled, except for the provisions of this Section 1102 if the corporation formed Article Eleven, shall be paid by such consolidation Guarantor or into 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 (pro rata to such holders on the basis of the respective amounts of Guarantor Senior Debt held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which the Com- pany is merged or the corporation which acquires by conveyance, transfer or lease any of such properties and assets substantially as an entiretyGuarantor Senior Debt may have been issued, as their respective interests may appear, for application to the case may bepayment of 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, shalldistribution or provision therefor to or for the holders of Guarantor Senior Debt.
(b) To the extent any payment of 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 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 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 a part Guarantor of any kind or character (other than payments by a trust previously established pursuant to Article Eight), whether in cash, property or securities, other than in Junior Securities, shall be received by any Holder when such payment or distribution is prohibited by Section 11.11(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 Guarantor Senior Debt (pro rata to such holders on the basis of the respective amount of 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 con- solidationGuarantor Senior Debt may have been issued, mergeras their respective interests may appear, conveyancefor application to the payment of Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt has been paid in full in cash or Cash Equivalents, transfer after giving effect to any concurrent payment, distribution or lease, comply with provision therefor to or for the conditions set forth in Article Eightholders of such Guarantor Senior Debt.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets of the Company any Guarantor of any kind or character, whether in cash, prop- erty property or securities, by set-off to creditors upon any total or otherwisepartial liquidation, to which the Holders or the Trustee would be entitled but dissolution, winding up, reorganization, assignment for the pro- visions benefit of this Article Elevencreditors or marshaling of assets of such Guarantor or in a bankruptcy, including 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, or such payment duly provided for to the satisfaction of the holders of Guarantor Senior Debt, before any such payment or distribution which may be payable of any kind or deliverable by reason character is made on account of any Obligations on the Notes, or for the acquisition of any of the payment Notes for cash or property or otherwise (except that Holders of any other indebtedness Notes may receive securities of the Company being Guarantor that are unsecured and subordinated at least to the payment of the Securi- ties (except, so long same extent as the effect of this parenthetical clause Notes to Guarantor Senior Debt as provided in the Indenture, do not have a maturity any shorter than the security which it is replacing and will not to cause the Securities Notes to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Guarantor Senior Indebtedness Debt or any class of claims on a parity with pari ---- passu with, or senior to to, the Guarantor Senior Indebtedness, Debt for any payment or ----- distribution). Upon any such dissolution, winding-up, liquidation, reorganization, receivership or similar proceeding, any payment or distribution of securities assets of any Guarantor of any kind or character, whether in cash, property or securities, to which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity Holders of the Securities and (iii) are subor- dinatedNotes or the Trustee under this Indenture would be entitled, to at least except for the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)provisions hereof, shall be paid by the such Guarantor 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 Holders or otherwiseby the Trustee under this Indenture if received by them, directly to the holders of Guarantor Senior Indebted- ness 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 principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the until all such Guarantor Senior Indebtedness to the extent necessary to make payment Debt has been paid in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, 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.
(3b) 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 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, 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 provisions of this Sectionforegoing, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company such Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including shall be received by any Holder when such payment or distribution which may be payable or deliverable is prohibited by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the SecuritiesSection 12.03(a), before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be 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 payment of all such Guarantor Senior Indebtedness Debt remaining unpaid to the extent neces- sary to pay until all such Guarantor Senior Indebtedness Debt has been paid in full in cash or cash equivalentsCash 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 corporation or the liquidation or dissolution of the Company any Guarantor following the conveyance, conveyance or transfer of all or lease substantially all of its properties and assets substantially as an entirety assets, to another corporation upon the terms and conditions set forth provided in Article Eight Section 11.06 hereof and as long as permitted under the terms of the Guarantor Senior Debt of such Guarantor shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 if the corporation formed by such consolidation or into which the Com- pany is merged or the corporation which acquires by conveyance, transfer or lease such properties and assets substantially as an entirety, as the case may be, other cor- poration shall, as a part of such con- solidationconsolidation, merger, conveyanceconveyance or transfer, transfer or lease, comply assume such Guarantor's obligations hereunder in accordance with the conditions set forth in Article EightSection 11.06 hereof.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding 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 marshalling of assets and or liabilities of the CompanyCompany (except in connection with the consolidation or merger of the Company or its liquidation or dissolution following the conveyance, transfer or lease of all of the properties and assets of it substantially as an entirety upon the terms and conditions described under Article Nine), then and in any such event:
(1a) the holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect equivalents of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalentsfull, before the Holders of the Securities are will be entitled to receive any payment or distribution of any kind or character (other than any payment or distribution in the form of equity securities or subordinated securities of the Company or any successor obligor that, 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 Indenture (such equity securities or subordinated securities hereinafter being "Permitted Junior Securities") and any payment made pursuant to Article Five from monies or U.S. Government Obligations previously deposited with the Trustee) on account of principal of (of, or premium, if any) , or interest on the Securities; and;
(2b) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securitiessecurities (other than a payment or distribution in the form of Permitted Junior Securities and any payments made pursuant to Article Five from monies or U.S. Government Obligations previously deposited with the Trustee), by set-off or otherwise, to which the Holders of the Securities or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Indenture shall be paid by the 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 Indebted- ness Indebtedness or their Representative 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, representatives ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its all of the properties and assets of the Company substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight Nine shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Company is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightNine.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 any Guarantor or to its creditors, as such, or to its assets, whether voluntary or involuntary, or (b) any liquidation, dissolution or other winding winding-up of the Companyany Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, bankruptcy or (c) any general assignment for the benefit of creditors or any other marshalling of assets and or liabilities of the Companyany Guarantor, then and in any such event:
(1) the holders of all Guarantor Senior Indebtedness of such Guarantor shall be entitled to receive indefeasible payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all such Guarantor Senior Indebtedness, Indebtedness (including interest after the commencement of any such proceeding at the rate specified on the applicable Guarantor Senior Indebtedness whether or provision shall be made for not such payment interest constitutes an allowed claim in cash or cash equivalents, such proceeding) before the Holders of the Securities are entitled to receive receive, pursuant to the Guarantee of such Guarantor, any payment or distribution of any kind or character (other than a payment or distribution from the trust described in Section 9.01 or Section 9.04) by such Guarantor on account of principal any of (or premium, if any) or interest on the Securitiesobligations of such Guarantor under its Guarantee; and
(2) any payment or distribution of assets of the Company such Guarantor of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions subordination provisions of this Article Eleven, including any such 11 (other than a payment or distribution which may be payable or deliverable by reason of from the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event trust described in Subsec- tion (a), (bSection 9.01 or Section 9.04) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 Guarantor Senior Indebted- ness Indebtedness of such Guarantor or their Representative representative or Representatives representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Guarantor 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, and other amounts due on or in connection with, the such Guarantor Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all such Guarantor Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 11.02, the Trustee or the any Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company such Guarantor of any kind or char- actercharacter, whether in cash, property Property or securities, including including, without limitation, by way of set-off or otherwise, in respect of any such of the obligations of any Guarantor pursuant to its Guarantee (other than a payment or distribution which may be payable in the form of Permitted Junior Securities or deliverable by reason of from the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, trust described in Section 9.01 or Section 9.04) before all Guarantor Senior Indebtedness of such Guarantor is indefeasibly paid in full or payment thereof provided forfull, then and in such event such payment or distribution shall be paid over or delivered de- livered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company such Guarantor for application to the payment of all such Guarantor Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all of such Guarantor Senior Indebtedness in full in cash or cash equivalentsor, as acceptable to the holders of such Guarantor Senior Indebtedness, any other manner, after giving effect to any concurrent payment or distribution to or for the holders of such Guarantor Senior Indebtedness. The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation Person or the liquidation or dissolution of the Company a Guarantor following the conveyance, transfer or lease of its properties Properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 5 hereof shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company such Guarantor for the purposes of this Section 1102 Article 11 if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation Person which acquires by conveyance, transfer or lease such properties Properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article Eight5 hereof.
Appears in 1 contract
Samples: Indenture (TNP Enterprises Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to the Company Holding or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding winding-up of the CompanyHolding, whether voluntary or involuntary and whether or not involving insolvency or bankruptcyinvoluntary, or (c) any assignment for the benefit of creditors or any other marshalling of assets and or liabilities of the CompanyHolding, then and in any such event:
(1) the holders of all Guarantor Senior Indebtedness of Holding shall be entitled to receive payment in full in cash or cash equiv- alents equivalents, or provision acceptable to the requisite holders of Guarantor Senior Indebtedness of Holding made for such payment, of all amounts due or to become due on or in respect of all such Guarantor Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness before the Holders of the Securities are entitled to receive any payment or distribution, whether in cash, property or securities (excluding Permitted Junior Securities) on account of principal the Senior Subordinated Note Obligations or for the acquisition of (or premium, if any) or interest on any of the SecuritiesNotes; and
(2) any payment or distribution of assets of the Company Holding of any kind or character, whether in cash, prop- erty property or securitiessecurities (excluding Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions subordination provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Ten shall be paid by the 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 Guarantor Senior Indebted- ness Indebtedness of Holding or their Representative representative or Representatives representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Guarantor 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, and other amounts due on or in connection with, the such Guarantor Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all such Guarantor Senior Indebtedness remaining unpaid, after giving 109 effect to any concurrent payment or distribution to the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 10.05, the Trustee or the Holder of any Security Note shall have received any such payment or dis- tribution distribution of assets of the Company Holding of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment in respect of any other indebt- edness of the Company being subordinated to the payment of the Securities, Senior Subordinated Note Obligations under this Note Guarantee before all Guarantor Senior Indebtedness of Holding is paid in full in cash or cash equivalents or payment thereof provided for, then and in such event such payment or distribution (excluding Permitted Junior Securities) 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 Holding for application to the payment of all such Guarantor Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all of such Guarantor Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of such Guarantor Senior Indebtedness. The consolidation of the Company Holding with, or the merger of the Company Holding with or into, another corporation Person or the liquidation or dissolution of the Company Holding following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight Person shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Holding for the purposes of this Section 1102 Article if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with assume the conditions set forth in Article EightNote Guarantee of Holding.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the ----------------------------------------------- event of (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 either Issuer or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Companyeither Issuer, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling marshaling of assets and or liabilities of the Companyeither Issuer, then and in any such event:
(1a) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents equivalents or, as acceptable to each holder of Senior Indebtedness, in any other manner, of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are Noteholder is entitled to receive any payment or distribution of any kind or character (excluding Permitted Junior Securities) on account of principal of (or of, premium, if any) , or interest on the SecuritiesNote; and
(2b) any payment or distribution of assets of the Company either Issuer of any kind or character, whether in cash, prop- erty property or securitiessecurities (excluding Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee Noteholder (in its capacity as Noteholder) would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 Indebted- ness Indebtedness or their Representative representative or Representatives 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article Eight.the
Appears in 1 contract
Samples: Note Agreement (Brylane Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency payment or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to distribution of assets of the Company or any Guarantor to its creditors, as such, or to its assets, or (b) creditors upon any liquidation, dissolution or other winding up of the Companydissolution, whether voluntary or involuntary and whether or not involving insolvency or bankruptcywinding-up, or (c) any reorganization, assignment for the benefit of creditors creditors, marshaling of assets or any other marshalling bankruptcy, insolvency or similar proceedings (each such event, if any, is herein sometimes referred to as a "Proceeding"), of assets and liabilities of the Company or any Guarantor (the Company or such Guarantor being the "Affected Obligor"), then (i) if the Affected Obligor is the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall first be entitled to receive payment in full full, in cash or cash equiv- alents Cash Equivalents, of all amounts due or to become due on or in respect of all such Senior Indebtedness, Indebtedness (including interest accruing after the commencement of any such Proceeding at the rate specified therein whether or provision shall be made for not such payment interest is an allowed claim in cash or cash equivalents, such proceeding) before the Holders of the Securities are entitled to receive any payment on account of principal of (or and premium, if any) or , and interest on the Securities; and
Securities or on account of the purchase or redemption or other acquisition of Securities by the Company or any Subsidiary of the Company and (2ii) if the Affected Obligor is a Guarantor, the holders of Guarantor Senior Indebtedness of such Guarantor shall first be entitled to receive payment in full, in cash or Cash Equivalents, of all amounts due or to become due on or in respect of such Guarantor Senior Indebtedness (including interest accruing after the commencement of any such Proceeding at the rate specified therein whether or not such interest is an allowed claim in such proceeding) before the Holders of the Securities are entitled to receive any payment or distribution of assets any kind with respect to the Securities Guarantee of such Guarantor (any payment on or purchase, redemption or acquisition of the Company Securities, referred to in clause (i), and any payment on a Securities Guarantee, referred to in clause (ii), being, individually and collectively, a "Securities Payment"), and, to that end, if the Affected Obligor is the Company, the holders of Senior Indebtedness and, if the Affected Obligor is a Guarantor, the holders of Guarantor Senior Indebtedness of such Guarantor (such Senior Indebtedness or Guarantor Senior Indebtedness, as the case may be, being "Affected Obligor Senior Indebtedness" of such Affected Obligor) shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution securities which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity respect of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee or agent or other person making in any such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in Proceeding. In the event that, notwithstanding the foregoing provisions of this SectionSection 1402, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company an Affected Obligor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Affected Obligor Senior Indebtedness is paid in full full, and if such fact shall, at or payment thereof provided forprior to the time of such payment, have been known to the Trustee or the Holder, as the case may be, then and in such event such payment or distribution distribution, except for amounts subject to the claim granted to the Trustee in Section 606 hereof, shall be held in trust for the holders of Affected Obligor 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 Company Affected Obligor for application to the payment of all Affected Obligor Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Affected Obligor Senior Indebtedness in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders of the Affected Obligor Senior Indebtedness. The consolidation For purposes of this Article XIV only, the Company withwords "any payment or distribution of any kind or character, cash, property or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight securities" shall not be deemed to include a dissolution, winding up, liquidation, reorganization, assignment for the benefit payment or distribution of creditors equity or marshalling of assets and liabilities subordinated securities of the Company Affected Obligor provided for the purposes by a plan of this Section 1102 if the reorganization or readjustment or of any other corporation formed provided for by such consolidation plan of reorganization or into which readjustment that, in the Com- pany is merged case of subordinated securities, are subordinated in right of payment to all then outstanding Affected Obligor Senior Indebtedness to at least the same extent as the Securities or the corporation which acquires by conveyance, transfer or lease such properties and assets substantially as an entiretySecurities Guarantees, as the case may be, shall, are so subordinated as a part of such con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth provided in this Article EightXIV.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. OF A GUARANTOR. In the event of of:
(a1) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, arrangement, reorganization or other similar case or proceeding in connection therewith, relative to the Company a Guarantor or to its creditors, as such, or to its assets, whether voluntary or involuntary; or
(b2) any liquidation, dissolution or other winding winding-up of the Company, whether voluntary or involuntary and other similar case or proceeding in connection therewith whether or not involving insolvency or bankruptcy, relative to a Guarantor or to its creditors, as such, or to such Guarantor's assets, whether voluntary or involuntary; or
(c3) any general assignment for the benefit of creditors or of a Guarantor; or
(4) any other marshalling marshaling of assets and or liabilities of a Guarantor (except in connection with the Companymerger or consolidation of a Guarantor or its liquidation or dissolution following the transfer of substantially all of its assets, then upon the terms and conditions permitted under the circumstances described under Section 5.01). (all of the foregoing events described in any such event:
clauses (1) through (4) referred to herein individually as a "GUARANTOR BANKRUPTCY PROCEEDING" and collectively as "GUARANTOR BANKRUPTCY PROCEEDINGS"), the holders of Guarantor Senior Indebtedness shall will be entitled to receive payment and satisfaction in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Guarantor Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness before the Holders of the Securities are entitled to receive or retain any payment or distribution of any kind on account of principal the Notes (except that Holders may receive payments of (or premium, if any) or interest on amounts previously deposited in trust in accordance with the Securities; and
(2) any defeasance provisions of this Indenture described under Article 9). Any payment or distribution of assets of the Company a Guarantor of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), 11 shall be paid by the 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 Guarantor Senior Indebted- ness Indebtedness or their Representative representative or Representatives representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Guarantor 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, and other amounts due on or in connection with, the Guarantor Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all Guarantor Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Guarantor Senior Indebtedness; and
(3) in . In the event that, notwithstanding the foregoing provisions of this Sectionforegoing, the Trustee or the any Holder of receives any Security shall have received any such payment or dis- tribution distribution of assets of the Company a Guarantor of any kind or char- acterkind, whether in cash, property or securities, including any including, without limitation, by way of set-off or otherwise, in respect of the Notes before all Guarantor Senior Indebtedness of a Guarantor is paid and satisfied in full in cash, then such payment or distribution which may will be payable or deliverable held by reason the recipient in trust for the benefit of the payment holders of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Guarantor Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution shall will be immediately paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent holders of Guarantor Senior Indebtedness or other Person making payment their representative or distribution of assets of the Company for application representatives to the extent necessary to make payment in full of all Guarantor Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalentsunpaid, after giving effect to any concurrent payment or distribution distribution, or provision therefor, to or for the holders of Guarantor Senior Indebtedness. The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation Person or the liquidation or dissolution of the Company a Guarantor following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 5 shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company a Guarantor for the purposes of this Section 1102 Article 11 if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article Eight5.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 any Guarantor or to its creditors, as such, or to its assets, whether voluntary or involuntary, or (b) any liquidation, dissolution or other winding winding-up of the Companyany Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, bankruptcy or (c) any general assignment for the benefit of creditors or any other marshalling of assets and or liabilities of the Companyany Guarantor, then and in any such event:
(1) the holders of all Guarantor Senior Indebtedness of such Guarantor shall be entitled to receive indefeasible payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all such Guarantor Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness before the Holders of the Securities are entitled to receive receive, pursuant to the Guarantee of such Guarantor, any payment or distribution of any kind or character (other than a payment or distribution in the form of Permitted Junior Securities or from the trust described in Section 9.01 or Section 9.04) by such Guarantor on account of principal any of (or premium, if any) or interest on the Securities; andobligations of such Guarantor under its Guarantee;
(2) any payment or distribution of assets of the Company such Guarantor of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions subordination provisions of this Article Eleven, including any such 11 (other than a payment or distribution which may be payable in the form of Permitted Junior Securities or deliverable by reason of from the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event trust described in Subsec- tion (a), (bSection 9.01 or Section 9.04) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 Guarantor Senior Indebted- ness Indebtedness of such Guarantor or their Representative representative or Representatives representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Guarantor 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, and other amounts due on or in connection with, the such Guarantor Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all such Guarantor Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 11.02, the Trustee or the any Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company such Guarantor of any kind or char- actercharacter, whether in cash, property Property or securities, including including, without limitation, by way of set-off or otherwise, in respect of any such of the obligations of any Guarantor pursuant to its Guarantee (other than a payment or distribution which may be payable in the form of Permitted Junior Securities or deliverable by reason of from the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, trust described in Section 9.01 or Section 9.04) before all Guarantor Senior Indebtedness of such Guarantor is indefeasibly paid in full or payment thereof provided forfull, then and in such event such payment or distribution 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 such Guarantor for application to the payment of all such Guarantor Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all of such Guarantor Senior Indebtedness in full in cash or cash equivalentsor, as acceptable to the holders of such Guarantor Senior Indebtedness, any other manner, after giving effect to any concurrent payment or distribution to or for the holders of such Guarantor Senior Indebtedness. The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation Person or the liquidation or dissolution of the Company a Guarantor following the conveyance, transfer or lease of its properties Properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 5 shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company such Guarantor for the purposes of this Section 1102 Article 11 if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation Person which acquires by conveyance, transfer or lease such properties Properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article Eight5.
Appears in 1 contract
Samples: Indenture (Transportation Technologies Industries Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to the Company or to its creditors, as such, Guarantor or to its assets, or (b) any liquidation, dissolution or other winding winding-up of the CompanyGuarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets and or liabilities of the Company, Guarantor then and in any such event:event (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture upon the Guarantor Senior Indebtedness and the holders thereof with respect to the Guaranteed Securities and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law):
(1) the holders of Guarantor Senior Indebtedness shall be entitled to receive payment in full full, in cash or cash equiv- alents equivalents or, as acceptable to the holders of Guarantor Senior Indebtedness, in any other manner, of all amounts due or to become due on or Guarantor Senior Indebtedness (including principal, premium, if any and interest, if any, and including, in respect the case of all Designated Guarantor Senior Indebtedness, any interest accruing subsequent to the filing of a petition for bankruptcy at the rate provided for in the documentation governing such Designated Guarantor Senior Indebtedness, to the extent that such interest is an allowed claim under applicable law), or provision shall be made for such payment in cash or cash equivalentspayment, before the Holders of the Guaranteed Securities are entitled to receive any payment or distribution of any kind or character (excluding securities of the Guarantor or any other person that are equity securities or are expressly subordinated in right of payment to all Guarantor Senior Indebtedness that may at the time be outstanding, to substantially the same extent as, or to a greater extent than, the Securities as provided in this Article; such securities are hereinafter collectively referred to as "Permitted Guarantor Junior Securities") on account of principal of (or of, premium, if any) , or interest on the Securities; and;
(2) any payment or distribution of assets of the Company Guarantor, of any kind or character, whether in cash, prop- erty property or securitiessecurities (excluding Permitted Guarantor Junior Securities), by set-off or otherwise, to which the Holders of the Guaranteed Securities or the Trustee for the Guaranteed Securities of such series would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Fifteen shall be paid by 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, directly to the holders of Guarantor Senior Indebted- ness Indebtedness or their Representative representative or Representatives representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Guarantor 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, and other amounts due on or in connection with, the Guarantor Senior Indebtedness held or represented by each, to the extent necessary to make payment in full full, in cash or cash equivalents or, as acceptable to the holders of Guarantor Senior Indebtedness, in any other manner, of all Guarantor Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to or for the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 1502, the Trustee for any series of Guaranteed Securities or the Holder of any Guaranteed Security shall have received any such payment or dis- tribution distribution of assets of the Company Guarantor, of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason in respect of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, Guarantee before all Guarantor Senior Indebtedness is paid in full full, in cash or cash equivalents or, as acceptable to the holders of Guarantor Senior Indebtedness, in any other manner, or payment thereof provided for, then and in such event such payment or distribution (excluding Permitted Guarantor Junior Securities) 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 payment of all Guarantor Senior Indebtedness remaining unpaid unpaid, ratably as aforesaid, to the extent neces- sary necessary to pay all Guarantor Senior Indebtedness in full full, in cash or cash equivalentsequivalents or, as acceptable to the holders of Guarantor Senior Indebtedness, in any other manner, after giving effect to any concurrent payment or distribution to or for the holders of Guarantor Senior Indebtedness. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor with or into, another corporation person or the liquidation or dissolution of the Company Guarantor following the conveyance, transfer transfer, lease or lease other disposition of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight hereof shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Guarantor for the purposes of this Section 1102 Article Fifteen if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation Person which acquires by conveyance, transfer transfer, lease or lease other disposition such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer transfer, lease or leaseother disposition, comply with the conditions set forth in such Article Eight.
Appears in 1 contract
Samples: Indenture (Ingersoll Rand Co LTD)
Payment Over of Proceeds Upon Dissolution, Etc. of a Guarantor. In the event of (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 any Guarantor or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding winding-up of the Companyany Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets and or liabilities of the Companyany Guarantor, then and in any such event:
(1) the holders of all Guarantor Senior Indebtedness Debt of such Guarantor shall be entitled to receive payment in full in cash or cash equiv- alents or, as acceptable to the holders of such Guarantor Senior Debt, in any other manner of all amounts due or to become due on or in respect of all such Guarantor Senior IndebtednessDebt (including, in the case of Obligations under the Amended and Restated Credit Agreement, and related Currency and Interest Rate Agreement Obligations of such Guarantor, any interest accruing subsequent to the filing of a petition for bankruptcy at the rate provided for in the documentation governing such Obligations under the Amended and Restated Credit Agreement, and Interest Rate Agreement Obligations of such Guarantor, as the case may be, whether or not such interest is an allowed claim under applicable law), or provision shall be made for such payment in cash or cash equivalentspayment, before the Holders of the Securities Notes are entitled to receive receive, pursuant to this Guarantee, any payment or distribution of any kind or character by or on behalf of such Guarantor on account of principal of (or premium, if any) or interest on the SecuritiesGuarantor's Obligations under the Notes; and
(2) any payment or distribution of assets of the Company such Guarantor of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions subordination provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Thirteen shall be paid by 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, directly to the holders of Guarantor Senior Indebted- ness Debt of such Guarantor or their Representative representative or Representatives representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Guarantor Senior Indebtedness Debt may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal ofsuch Guarantor Senior Debt held or represented by each, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment in full in cash or cash equivalents of all such Guarantor Senior Indebtedness Debt remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Guarantor Senior IndebtednessDebt; and
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 13.05, the Trustee or the Holder of any Security Note shall have received any such payment or dis- tribution distribution of assets of the Company such Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment in respect of any other indebt- edness Obligations of the Company being subordinated to the payment of the Securities, such Guarantor under this Guarantee before all Guarantor Senior Indebtedness Debt of such Guarantor is paid in full in cash or payment thereof provided for, then and in such event such payment or distribution 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 Senior Representative for application to the payment of all such Guarantor Senior Indebtedness Debt remaining unpaid unpaid, to the extent neces- sary necessary to pay all of such Guarantor Senior Indebtedness Debt in full in cash or cash equivalentscash, after giving effect to any concurrent payment or distribution to or for the holders of such Guarantor Senior IndebtednessDebt. The consolidation Any such payment or distribution of assets received by the Company withTrustee, or which is required to be paid over to the merger of Senior Representative, will be held in trust by the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment Trustee for the benefit of creditors or marshalling of assets and liabilities the holders of the Company for the purposes of this Section 1102 if the corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightGuarantor Senior Debt.
Appears in 1 contract
Samples: Indenture (Freedom Chemical Co)
Payment Over of Proceeds Upon Dissolution, Etc. of a Guarantor. In the event of any:
(a1) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, arrangement, reorganization or other similar case or proceeding in connection therewith, relative to the Company a Guarantor or to its creditors, as such, or to its assets, whether voluntary or involuntary;
(b2) any liquidation, dissolution or other winding winding-up of the Companya Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or ;
(c3) any general assignment for the benefit of creditors or any other marshalling of a Guarantor; or
(4) marshaling of assets and or liabilities of a Guarantor (except in connection with the Companymerger or consolidation of a Guarantor or its liquidation or dissolution following the transfer of substantially all of its assets, then upon the terms and conditions permitted under the circumstances described under Section 5.01). (all of the foregoing events described in any such event:
clauses (1) through (4) referred to herein individually as a "Guarantor Bankruptcy Proceeding" and collectively as "Guarantor Bankruptcy Proceedings"), the holders of Guarantor Senior Indebtedness shall of a Guarantor will be entitled to receive payment and satisfaction in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Guarantor Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness of a Guarantor before the Holders holders of the Securities Notes are entitled to receive or retain any payment or distribution of any kind on account of principal the Notes. In the event that, notwithstanding the foregoing, the Trustee or any Holder of (or premium, if any) or interest on the Securities; and
(2) Notes receives any payment or distribution of assets of the Company a Guarantor of any kind or characterkind, whether in cash, prop- erty property or securities, including, without limitation, by way of set-off or otherwise, to which in respect of the Holders or the Trustee would be entitled but for the pro- visions Notes before all Guarantor Senior Indebtedness of this Article Elevena Guarantor is paid and satisfied in full in cash, including any then such payment or distribution which may will be payable or deliverable held by reason the recipient in trust for the benefit of the payment holders of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Guarantor Senior Indebtedness and will be immediately paid over or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly delivered to the holders of Guarantor Senior Indebted- ness Indebtedness or their Representative 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, and other amounts due on or in connection with, the Senior Indebtedness representatives to the extent necessary to make payment in full in cash or cash equivalents of all Guarantor Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event thatdistribution, notwithstanding the foregoing provisions of this Sectionor provision therefor, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Guarantor Senior Indebtedness. By reason of such subordination, in the event of any such Guarantor Bankruptcy Proceeding, creditors of a Guarantor who are holders of Guarantor Senior Indebtedness may recover more, ratably, than other creditors of a Guarantor, including Holders of the Notes, and creditors of a Guarantor who are not holders of Guarantor Senior Indebtedness or of the Notes may recover more, ratably, than the Holders of the Notes. The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation Person or the liquidation or dissolution of the Company a Guarantor following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight Five hereof shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company a Guarantor for the purposes of this Section 1102 Article Eleven if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightFive hereof.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. (a) In the event of (ai) 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 their assets, or (bii) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (ciii) any assignment for the benefit of creditors or any other marshalling marshaling of assets and liabilities of the Company, then and in any such event:
event specified in (1i), (ii) or (iii) above the holders of Senior Indebtedness Debt shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Debt before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Securities Payment and in any payment or distribution of assets of the Company of such event any kind or character, whether in cash, prop- erty or securities, by set-off or otherwise, Securities Payment to which the Holders of the Securities or the Trustee on their behalf would be entitled entitled, but for the pro- visions subordination provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)Indenture, shall be paid made 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 or otherwise, directly to the holders of the Senior Indebted- ness Debt (pro rata to such holders on the basis of the respective amount of Senior Debt held by such holders) or their Representative respective trustee, agent or Representatives or to the trustee or trustees other representative under any agreement or indenture under pursuant to which any instruments evidencing any of such Senior Indebtedness Debt may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal ofas their respective interests may appear, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment pay all such Senior Debt in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior Indebtedness; andDebt.
(3b) in In the event that, notwithstanding the foregoing provisions of this Sectionprovision prohibiting such Securities Payment, any Securities Payment shall be received by the Trustee or the any Holder of any Security shall have received any Securities at a time when such payment or dis- tribution Securities Payment is prohibited by Section 8.03(a) and before all obligations in respect of assets of the Company of any kind or char- acter, whether Senior Debt are paid in full in cash, property or securitiessuch Securities Payment shall be received and held in trust for the benefit of, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be paid over or delivered forthwith to, the holders of Senior Debt (pro rata to such holders on the trustee in bankruptcy, receiver, liquidating basis of the respective amounts of Senior Debt held by such holders) or their respective trustee, custodian, assignee, agent or other Person making payment representative under any agreement or distribution indenture pursuant to which any of assets of the Company such Senior Debt may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness Debt remaining unpaid to the extent neces- sary to pay until all such Senior Indebtedness Debt 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 account of the holders of such Senior IndebtednessDebt. The consolidation of the Company with, or the merger of the Company with or into, another corporation or the liquidation or dissolution of the Company following the conveyance, conveyance or transfer or lease of its properties and assets property as an entirety, or substantially as an entirety entirety, to another corporation upon the terms and conditions set forth provided in Article Eight Five shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 if the such other corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth stated in Article EightFive.
Appears in 1 contract
Samples: Indenture (Aep Industries Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 Guarantor or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the CompanyGuarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of or creditors or any other marshalling of assets and liabilities of the CompanyGuarantor, then and in any such event:
(1) event the holders of Senior Guarantor Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Guarantor Indebtedness, or provision shall be made for such payment in cash money or cash equivalentsmoney's worth, before the Holders of the Securities Guarantees are entitled to receive any payment under the Guarantees on account of principal of (or on, premium, if any) , or interest on the Securities; and
(2) Securities and to that end the holders of Senior Guarantor Indebtedness shall be entitled to receive, for application to the payment thereof, any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason in respect of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated Guarantees in any case or proceeding or similar event described in Subsec- tion (a)such case, (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtednessproceeding, for any such payment or distribution of securities which (i) are unsecureddissolution, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee or agent liquidation or other person making such payment winding up or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in event. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security in respect of the related Guarantee shall have received any such payment or dis- tribution distribution of assets of the Company Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Guarantor Indebtedness is paid in full or payment thereof provided for, 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 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 payment of all Senior Guarantor Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Guarantor Indebtedness in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders holder of Senior Guarantor Indebtedness. For purposes of this Article only, the words "cash, property or securities" shall not be deemed to include shares of 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 are subordinated in right of payment to all Senior Guarantor Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Guarantees are so subordinated as provided in this Article. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation Person or the liquidation or dissolution of the Company Guarantor following the conveyance, conveyance or transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Guarantor for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation which acquires by conveyance, conveyance or transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth in Article Eight.
Appears in 1 contract
Samples: Indenture (Xtra Missouri Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling marshaling of assets and or liabilities of the Company, then then, and in any such event:
(1) the holders of Senior Indebtedness of the Company shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior IndebtednessIndebtedness of the Company, or provision shall be made for such payment in cash or cash equivalentspayment, before the Holders of the Securities are entitled to receive any payment or distribution of any kind or character (excluding securities of the Company or any other corporation that are equity securities or are subordinated in right of payment to all Senior Indebtedness of the Company, that 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; such securities are hereinafter collectively referred to as "Permitted Junior Securities") on account of principal of the Principal Amount, premium (or premium, if any) ), accrued Original Issue Discount, Redemption Price, Change in Control Purchase Price, Asset Sale Offer Price or interest on (if any), or any other payment required hereunder, in connection with the Securities; and
(2) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securitiessecurities (excluding Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness Indebtedness of the Company or their Representative representative or Representatives representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness of the Company 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, and other amounts due on or in connection with, the Senior Indebtedness of the Company held or represented by each, to the extent necessary to make payment in full in cash equivalents or cash equivalents cash, of all Senior Indebtedness of the Company remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior IndebtednessIndebtedness of the Company; and
(3) in the event thatif, notwithstanding the foregoing provisions of this SectionSection 11.02, the Trustee or the Holder of any Security shall have received received, subsequent to the occurrence of any such of the events described in the preceding clauses (a),(b), or (c) of this Section, any payment or dis- tribution distribution of assets of the Company of any kind or char- actercharacter, whether in cash, property or securities, including any such payment in respect of Principal Amount, premium (if any), accrued Original Issue Discount, Redemption Price, Change in Control Purchase Price, Asset Sale Offer Price or distribution which may be payable interest (if any), or deliverable by reason of the payment of any other indebt- edness of payment required hereunder on the Company being subordinated to the payment of the Securities, Securities before all Senior Indebtedness of the Company is paid in full or payment thereof provided for, then and in such event such payment or distribution (excluding Permitted Junior Securities) 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 Company for application to the payment of all Senior Indebtedness of the Company remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Indebtedness of the Company in full in cash or equivalents, cash equivalentsor, as acceptable to the holders of Senior Indebtedness of the Company, any other manner, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessIndebtedness of the Company. The consolidation of the Company with, or the merger of the Company with or into, another corporation person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation person upon the terms and conditions set forth in Article Eight VIII shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightVIII.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency payment or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to distribution of assets of the Company or any Guarantor to its creditors, as such, or to its assets, or (b) creditors upon any liquidation, dissolution or other winding up of the Companydissolution, whether voluntary or involuntary and whether or not involving insolvency or bankruptcywinding-up, or (c) any reorganization, assignment for the benefit of creditors creditors, marshaling of assets or any other marshalling bankruptcy, insolvency or similar proceedings, whether voluntary or not (except in connection with a consolidation or merger or liquidation or dissolution following the conveyance, transfer or lease of the assets and liabilities properties of the Company substantially as an entirety upon the terms and conditions described under Section 8.01) (each such event, if any, is herein sometimes referred to as a “Proceeding”), of the Company or any Guarantor (the Company or such Guarantor being the “Affected Obligor”), then (i) if the Affected Obligor is the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall first be entitled to receive payment in full full, in cash or cash equiv- alents Cash Equivalents, of all amounts due or to become due on or in respect of all such Senior Indebtedness, Indebtedness (including interest accruing after the commencement of any such Proceeding at the rate specified therein whether or provision shall be made for not such payment interest is an allowed claim in cash or cash equivalents, such proceeding) before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or and interest on the Securities; and
Securities or on account of the purchase or redemption or other acquisition of Securities by the Company or any Subsidiary of the Company and (2ii) if the Affected Obligor is a Guarantor, the holders of Guarantor Senior Indebtedness of such Guarantor shall first be entitled to receive payment in full, in cash or Cash Equivalents, of all amounts due or to become due on or in respect of such Guarantor Senior Indebtedness (including interest accruing after the commencement of any such Proceeding at the rate specified therein whether or not such interest in an allowed claim in such proceeding) before the Holders of the Securities are entitled to receive any payment or distribution of assets any kind with respect to the Guarantee of such Guarantor (any payment on or purchase, redemption or acquisition of the Company Securities, referred to in clause (i), and any payment on a Guarantee, referred to in clause (ii), being, individually and collectively, a “Securities Payment”), and, to that end, if the Affected Obligor is the Company, the holders of Senior Indebtedness and, if the Affected Obligor is a Guarantor, the holders of Guarantor Senior Indebtedness of such Guarantor (such Senior Indebtedness or Guarantor Senior Indebtedness, as the case may be, being “Affected Obligor Senior Indebtedness” of such Affected Obligor) shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution securities which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity respect of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee or agent or other person making in any such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in Proceeding. In the event that, notwithstanding the foregoing provisions of this SectionSection 14.02, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company an Affected Obligor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Affected Obligor Senior Indebtedness is paid in full full, and if such fact shall, at or payment thereof provided forprior to the time of such payment, have been known to the Trustee or the Holder, as the case may be, then and in such event such payment or distribution distribution, except for amounts subject to the claim granted to the Trustee in Section 6.06 hereof, shall be held in trust for the holders of Affected Obligor 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 Company Affected Obligor for application to the payment of all Affected Obligor Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Affected Obligor Senior Indebtedness in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders of the Affected Obligor Senior Indebtedness. The consolidation For purposes of this Article XIV only, the Company withwords “any payment or distribution of any kind or character, cash, property or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight securities” shall not be deemed to include a dissolution, winding up, liquidation, reorganization, assignment for the benefit payment or distribution of creditors equity or marshalling of assets and liabilities subordinated securities of the Company Affected Obligor provided for by a plan of reorganization or readjustment that, in the purposes case of this Section 1102 if subordinated securities, are subordinated in right of payment to all then outstanding Affected Obligor Senior Indebtedness to at least the corporation formed by such consolidation same extent as the Securities or into which the Com- pany is merged or the corporation which acquires by conveyance, transfer or lease such properties and assets substantially as an entiretyGuarantees, as the case may be, shall, are so subordinated as a part of such con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth provided in this Article EightXIV.
Appears in 1 contract
Samples: Indenture (Baytex Energy LTD)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 any Guarantor or to its creditors, as such, or to its assets, whether voluntary or involuntary, or (b) any liquidation, dissolution or other winding winding-up of the Companyany Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any general assignment for the benefit of creditors of any Guarantor or (d) any other marshalling of assets and or liabilities of the Companyany Guarantor, then and in any such event:
(1) the holders of Senior Indebtedness of such Guarantor shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all such Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness before the Holders of the Securities are entitled to receive receive, pursuant to the Guarantee of such Guarantor, any payment or distribution of any kind or character (other than a payment in the form of Permitted Junior Securities or from the trust described in Section 9.01 or Section 9.04) by such Guarantor on account of principal any obligations of (or premium, if any) or interest on the Securitiessuch Guarantor under its Guarantee; and
(2) any payment or distribution of assets of the Company such Guarantor of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such 11 (other than a payment in the form of Permitted Junior Securities or distribution which may be payable or deliverable by reason of from the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event trust described in Subsec- tion (a), (bSection 9.01 or Section 9.04) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 Indebted- ness Indebtedness of such Guarantor or their Representative representative or Representatives 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, and other amounts due on or in connection with, the such Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all such Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 11.02, the Trustee or the any Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company such Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including including, without limitation, by way of set-off or otherwise, in respect of any such payment or distribution which may be payable or deliverable by reason of the payment Obligations of any Guarantor pursuant to its Guarantee (other indebt- edness than a payment in the form of Permitted Junior Securities or from the Company being subordinated to the payment of the Securities, trust described in Section 9.01 or Section 9.04) before all Senior Indebtedness of such Guarantor is paid in full or payment thereof provided forin cash, then and in such event such payment or distribution 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 such Guarantor for application to the payment of all such Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all such Senior Indebtedness in full in cash or cash equivalentsor, as acceptable to the holders of such Senior Indebtedness, any other manner, after giving effect to any concurrent payment or distribution distribution, to or for the holders of such Senior Indebtedness. The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation Person or the liquidation or dissolution of the Company a Guarantor following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 5 or Section 10.06, as applicable, hereof shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company such Guarantor for the purposes of this Section 1102 Article 11 if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article Eightsuch Section 10.06.
Appears in 1 contract
Samples: Indenture (3055854 Nova Scotia Co)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the CompanyBorrower, then and in any such event:
(1) the holders Senior Debt (including, without limitation, any such amounts declared due prior to their stated maturity and any interest accruing after the occurrence of any default or event of default specified in subsection 8(f) of the Senior Indebtedness Credit Agreement, whether or not such interest is allowed as a claim in any bankruptcy or insolvency proceeding) shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalentsDebt, before the Holders of the Securities are Subordinated Lender is entitled to receive any payment on account of principal of (or premium, if any) or interest or otherwise on the Securities; andJunior Debt;
(2) any payment or distribution of assets of the Company Borrower of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee Subordinated Lender would be entitled but for the pro- visions of this Article Elevenprovisions hereof, including including, with respect to the Junior Debt, any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness debt of the Company Borrower being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)Junior Debt, shall be paid by 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, directly to the holders Senior Lenders (pro rata to each such Senior Lender on the basis of the respective amounts of Senior Indebted- ness or their Representative or Representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of Debt held by such Senior Indebtedness may have been issuedLender), ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment in full in cash or cash equivalents of all Senior Indebtedness Debt remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior IndebtednessLenders; and
(3) in the event that, notwithstanding the foregoing provisions of this Sectionforegoing, the Trustee or the Holder of any Security Subordinated Lender shall have received any such payment or dis- tribution distribution of assets of the Company Borrower of any kind or char- acter, character whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness debt of the Company Borrower being subordinated to the payment of the SecuritiesJunior Debt, before all Senior Indebtedness Debt is paid in full or payment thereof provided forin cash, then and in such event such payment or distribution 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 Senior Lenders (pro rata to each Senior Lender on the basis of the Company for application to respective amounts of the payment of all Senior Indebtedness remaining unpaid Debt held by such Senior Lender) to the extent neces- sary necessary to pay all Senior Indebtedness make payment in full in cash or cash equivalentsof all Senior Debt remaining unpaid, 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 corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightLenders.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency payment or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to distribution of assets of the Company or any Guarantor to its creditors, as such, or to its assets, or (b) creditors upon any liquidation, dissolution or other winding up of the Companydissolution, whether voluntary or involuntary and whether or not involving insolvency or bankruptcywinding-up, or (c) any reorganization, assignment for the benefit of creditors creditors, marshaling of assets or any other marshalling bankruptcy, insolvency or similar proceedings, whether voluntary or not (except in connection with a consolidation or merger or liquidation or dissolution following the conveyance, transfer 104 or lease of the assets and liabilities properties of the Company substantially as an entirety upon the terms and conditions described under Section 8.01) (each such event, if any, is herein sometimes referred to as a "Proceeding"), of the Company or any Guarantor (the Company or such Guarantor being the "Affected Obligor"), then (i) if the Affected Obligor is the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall first be entitled to receive payment in full full, in cash or cash equiv- alents Cash Equivalents, of all amounts due or to become due on or in respect of all such Senior Indebtedness, Indebtedness (including interest accruing after the commencement of any such Proceeding at the rate specified therein whether or provision shall be made for not such payment interest is an allowed claim in cash or cash equivalents, such proceeding) before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or and interest on the Securities; and
Securities or on account of the purchase or redemption or other acquisition of Securities by the Company or any Subsidiary of the Company and (2ii) if the Affected Obligor is a Guarantor, the holders of Guarantor Senior Indebtedness of such Guarantor shall first be entitled to receive payment in full, in cash or Cash Equivalents, of all amounts due or to become due on or in respect of such Guarantor Senior Indebtedness (including interest accruing after the commencement of any such Proceeding at the rate specified therein whether or not such interest in an allowed claim in such proceeding) before the Holders of the Securities are entitled to receive any payment or distribution of assets any kind with respect to the Guarantee of such Guarantor (any payment on or purchase, redemption or acquisition of the Company Securities, referred to in clause (i), and any payment on a Guarantee, referred to in clause (ii), being, individually and collectively, a "Securities Payment"), and, to that end, if the Affected Obligor is the Company, the holders of Senior Indebtedness and, if the Affected Obligor is a Guarantor, the holders of Guarantor Senior Indebtedness of such Guarantor (such Senior Indebtedness or Guarantor Senior Indebtedness, as the case may be, being "Affected Obligor Senior Indebtedness" of such Affected Obligor) shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution securities which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity respect of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee or agent or other person making in any such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in Proceeding. In the event that, notwithstanding the foregoing provisions of this SectionSection 14.02, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company an Affected Obligor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Affected Obligor Senior Indebtedness is paid in full full, and if such fact shall, at or payment thereof provided forprior to the time of such payment, have been known to the Trustee or the Holder, as the case may be, then and in such event such payment or distribution distribution, except for amounts subject to the claim granted to the Trustee in Section 6.06 hereof, shall be held in trust for the holders of Affected Obligor 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 Company Affected Obligor for application to the payment of all Affected Obligor Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Affected Obligor Senior Indebtedness in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders of the Affected Obligor Senior Indebtedness. The consolidation For purposes of this Article XIV only, the Company withwords "any payment or distribution of any kind or character, cash, property or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight securities" shall not be deemed to include a dissolution, winding up, liquidation, reorganization, assignment for the benefit payment or distribution of creditors equity or marshalling of assets and liabilities subordinated securities of the Company Affected 105 Obligor provided for by a plan of reorganization or readjustment that, in the purposes case of this Section 1102 if subordinated securities, are subordinated in right of payment to all then outstanding Affected Obligor Senior Indebtedness to at least the corporation formed by such consolidation same extent as the Securities or into which the Com- pany is merged or the corporation which acquires by conveyance, transfer or lease such properties and assets substantially as an entiretyGuarantees, as the case may be, shall, are so subordinated as a part of such con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth provided in this Article EightXIV.
Appears in 1 contract
Samples: Indenture (Baytex Energy LTD)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding 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 marshalling of assets and or liabilities of the CompanyCompany (except in connection with the consolidation or merger of the Company or its liquidation or dissolution following the conveyance, transfer or lease of all of the properties and assets of the Company substantially as an entirety upon the terms and conditions described under Article Nine), then and in any such event:
(1) the holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect equivalents of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalentsfull, before the Holders of the Securities are will be entitled to receive any payment or distribution of any kind or character (other than any payment or distribution in the form of equity securities or subordinated securities of the Company or any successor obligor that, 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 Indenture (such equity securities or subordinated securities hereinafter being "Permitted Junior Securities") and any payment made pursuant to Article Five from monies or U.S. Government Obligations previously deposited with the Trustee) on account of principal of (of, or premium, if any) , or interest on the Securities; and;
(2) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securitiessecurities (other than a payment or distribution in the form of Permitted Junior Securities and any payments made pursuant to Article Five from monies or U.S. Government Obligations previously deposited with the Trustee), by set-off or otherwise, to which the Holders of the Securities or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Indenture shall be paid by the 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 Indebted- ness Indebtedness or their Representative 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, representatives ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its all of the properties and assets of the Company substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight Nine shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Company is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightNine.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In Upon any ----------------------------------------------- distribution of the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding Guarantor's assets in connection therewithwith any dissolution, relative to the Company winding up, liquidation or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up reorganization of the CompanyGuarantor, whether voluntary or involuntary and whether or not involving involuntary, in bankruptcy, insolvency or bankruptcyreceivership proceedings (each such event, if any, herein sometimes referred to as a "Proceeding"), or (c) any upon an assignment for the benefit of creditors or otherwise: (i) all Guarantor Secured Indebtedness (including without limitation all interest accruing on or after the filing of any other marshalling of assets and liabilities of petition in bankruptcy relating to the CompanyGuarantor at the relevant contractual rate, then and whether or not such claim for post-petition interest is allowed in any such event:
(1Proceeding) the holders of Senior Indebtedness shall must be entitled to receive payment paid in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment payments or distributions of any kind or character on account of principal of any Guarantee Payments pursuant to this Guarantee Agreement, and (or premium, if any) or interest on the Securities; and
(2ii) any payment or distribution of the Guarantor's assets of the Company of any kind or character, whether in cash, prop- erty securities or securitiesother property, by set-off or otherwise, to which the Holders or the Trustee would be entitled otherwise (but for the pro- visions of this Article Eleven, including any such payment or distribution which may these subordination provisions) be payable or deliverable by reason in respect of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Guarantee Payments shall be paid by 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, delivered directly to the holders of Senior Indebted- ness such Guarantor Secured Indebtedness (or their Representative 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 holders until all Guarantor Secured Indebtedness may shall have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment paid in full in cash before any payment or cash equivalents distribution is made to the Holders. In the event that notwithstanding the subordination provisions set forth herein, any payment or distribution of assets of any kind or character is made 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 Guarantor Secured Indebtedness remaining unpaidis paid in full in cash, after giving effect the Guarantee Trustee or the Holders receiving such payment will be required to any concurrent pay over such payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior Guarantor Secured Indebtedness. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation Person or the liquidation or dissolution of the Company Guarantor following the conveyance, transfer sale of all or lease substantially all of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 8 of the Indenture shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Proceeding for the purposes of this Section 1102 8.2 if the corporation Person formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation Person which acquires by conveyance, transfer or lease sale such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer or lease, sale comply with the conditions set forth in Article Eight8.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In Upon any distribution of the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding Guarantor's assets in connection therewithwith any dissolution, relative to the Company winding-up, liquidation or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up reorganization of the CompanyGuarantor, whether voluntary or involuntary and whether or not involving involuntary, in bankruptcy, insolvency or bankruptcyreceivership proceedings (each such event, if any, herein sometimes referred to as a "Proceeding"), or (c) any upon an assignment for the benefit of creditors or otherwise: (i) all Guarantor Senior Debt (including without limitation all interest accruing on or after the filing of any other marshalling of assets and liabilities of petition in bankruptcy relating to the CompanyGuarantor at the relevant contractual rate, then and whether or not such claim for post-petition interest is allowed in any such event:
(1Proceeding) the holders of Senior Indebtedness shall must be entitled to receive payment paid in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment payments or distributions of any kind or character on account of principal of any Guarantee Payments pursuant to this Guarantee Agreement, and (or premium, if any) or interest on the Securities; and
(2ii) any payment or distribution of the Guarantor's assets of the Company of any kind or character, whether in cash, prop- erty securities or securitiesother property, by set-off or otherwise, to which the Holders or the Trustee would be entitled otherwise (but for the pro- visions of this Article Eleven, including any such payment or distribution which may these subordination provisions) be payable or deliverable by reason in respect of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Guarantee Payments shall be paid by 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, delivered directly to the holders of such Guarantor Senior Indebted- ness Debt (or their Representative 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 holders until all Guarantor Senior Indebtedness may Debt shall have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment paid in full in cash before any payment or cash equivalents distribution is made to the Holders. In the event that, notwithstanding the subordination provisions set forth herein, any payment or distribution of assets of any kind or character is made 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 Guarantor Senior Indebtedness remaining unpaidDebt is paid in full in cash, after giving effect the Guarantee Trustee or the Holders receiving such payment will be required to any concurrent pay over such payment or distribution to the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation Person or the liquidation or dissolution of the Company Guarantor following the conveyance, transfer sale of all or lease substantially all of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight VIII of the Indenture shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Proceeding for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation Person which acquires by conveyance, transfer or lease sale such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer or lease, sale comply with the conditions set forth in Article Eight8.
Appears in 1 contract
Samples: Guarantee Agreement (Alcoa Trust I)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to either of the Company Issuers or to its their creditors, as such, or to its assets, whether voluntary or involuntary, (b) any liquidation, dissolution or other winding winding-up of either of the CompanyIssuers, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any general assignment for the benefit of creditors or (d) any other marshalling of assets and or liabilities of either of the CompanyIssuers, then and in any such event:
(1) the holders of Senior Indebtedness of the Issuers shall be entitled to receive indefeasible payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness before the Holders of the Securities are entitled to receive any payment or distribution of any kind or character (other than from the trust described in Section 9.01 or Section 9.04) on account of principal of (or premium, if any) or interest any obligations on the SecuritiesNotes; and
(2) any payment or distribution of assets of the Company Issuers of any kind or character, whether in cash, prop- erty Property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of 12 (other than from the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event trust described in Subsec- tion (a), (bSection 9.01 or Section 9.04) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 Indebted- ness Indebtedness or their Representative representative or Representatives 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, and other amounts due on or in connection with, 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
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 12.02, the Trustee or the any Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company Issuers of any kind or char- actercharacter, whether in cash, property or securities, including any such payment including, without limitation, by way of set-off or distribution which may be payable or deliverable by reason otherwise, in respect of the payment of any other indebt- edness of principal of, premium, if any, and interest on the Company being subordinated to the payment of the Securities, Notes before all Senior Indebtedness is indefeasibly paid in full or payment thereof provided forin cash, then and in such event such payment or distribution 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 Issuers for application to the payment of all such Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Indebtedness in full in cash or cash equivalentsor, as acceptable to the holders of such Senior Indebtedness, any other manner, after giving effect to any concurrent payment or distribution distribution, to or for the holders of such Senior Indebtedness. The consolidation of either of the Company Issuers with, or the merger of either of the Company Issuers with or into, another corporation Person or the liquidation or dissolution of either of the Company Issuers following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 5 shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of either of the Company Issuers for the purposes of this Section 1102 Article 12 if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article Eight5.
Appears in 1 contract
Samples: Indenture (Norcross Capital Corp)
Payment Over of Proceeds Upon Dissolution, Etc. (a) In the event of (ai) 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 any Guarantor or to its creditors, as such, or to its their assets, or (bii) any liquidation, dissolution or other winding up of the Companyany Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (ciii) any assignment for the benefit of creditors or any other marshalling marshaling of assets and liabilities of the Companyany Guarantor, then and in any such event:
event specified in (1i), (ii) or (iii) above the holders of such Senior Indebtedness Debt shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all such Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Debt before the Holders of the Securities are entitled to receive payment or distribution and in any such event any such Guarantor to which the Holders of the Securities or the Trustee on their behalf would be entitled, but for the subordination provisions of this Indenture, shall be made by such Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, directly to the holders of such Senior Debt (pro rata to such holders on account the basis of principal the respective amount of (or premium, if anysuch Senior Debt held by such holders) or interest on their respective trustee, agent or other representative under any agreement or indenture pursuant to which any of such Senior Debt may have been issued, as their respective interests may appear, to the Securities; andextent necessary to pay all such Senior Debt in full in cash after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Senior Debt.
(2b) In the event that, notwithstanding the foregoing provision prohibiting such payment or distribution, any payment or distribution of assets of the Company or securities of any kind or character, whether in cash, prop- erty property or securities, shall be received by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions or any Holder of this Article Eleven, including any Securities at a time when such payment or distribution which may be payable or deliverable is prohibited by reason Section 12.03(a) and before all obligations in respect of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (exceptSenior Debt are paid in full in cash, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecuredshall be received and held in trust for the benefit of, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee over 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 Indebted- ness Debt (pro rata to such holders on the basis of the respective amounts of such Senior Debt held by such holders) or their Representative respective trustee, agent or Representatives or to the trustee or trustees other representative under any agreement or indenture under pursuant to which any instruments evidencing any of such Senior Indebtedness Debt may have been issued, ratably according as their respective interests may appear, for application to the aggregate amounts payment of such Senior Debt remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the until all such Senior Indebtedness to the extent necessary to make payment Debt has been paid in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the account of the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt. The consolidation of the Company any Guarantor with, or the merger of the Company any Guarantor with or into, another corporation or the liquidation or dissolution of the Company any Guarantor following the conveyance, conveyance or transfer or lease of its properties and assets property as an entirety, or substantially as an entirety entirety, to another corporation upon the terms and conditions set forth provided in Article Eight Five or Section 11.03 shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 if the such other corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth stated in Article EightFive or such Guarantor or successor entity shall be released from the Guarantee pursuant to the terms of Section 11.03.
Appears in 1 contract
Samples: Indenture (Aep Industries Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event If an Indenture Event of (a) any insolvency or bankruptcy case or proceedingDefault has occurred and is continuing, 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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive upon any payment on account of principal of (or premium, if any) or interest on by the Securities; and
(2) any payment Guarantor or distribution of assets of the Company Guarantor of any kind or character, whether in cash, prop- erty property or securities, to creditors upon any dissolution or winding-up or liquidation or reorganization of the Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all amounts due upon all Preferred Guarantee Payments shall first be paid in full, or payment thereof provided for in money in accordance with the terms of the Preferred Securities Guarantee Agreement, before any payment is made by setthe Guarantor on account of any Guarantee Payments under this Common Securities Guarantee Agreement; and upon any such dissolution or winding-off up or otherwiseliquidation or reorganization, any payment by the Guarantor, or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, to which the Holders of the Common Securities or the Common Guarantee Trustee would be entitled but to receive from the Guarantor, except for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)Article, shall be paid by the liquidating Guarantor or by any receiver, trustee or in bankruptcy, liquidation trustee, agent or other person making such payment or distribution, whether a trustee in bankruptcyor by the Holders of the Common Securities or by the Common Guarantee Trustee under this Common Securities Guarantee Agreement, a receiver if received by them or liquidating trustee or otherwiseit, directly to the holders of Senior Indebted- ness the Preferred Securities (pro rata to such holders on the basis of the respective amounts of Preferred Securities held by such holders, as calculated by the trustee or trustees under the Preferred Securities Guarantee Agreement) or their Representative representative or Representatives representatives, or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness the Preferred Securities Guarantee Agreement, as their respective interests may have been issuedappear, ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment pay such Preferred Guarantee Payments in full full, in cash money 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalentsmoneys worth, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtednesssuch Preferred Securities, before any payment or distribution is made to the Holders of the Common Securities or to the Common Guarantee Trustee hereunder. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Common Guarantee Trustee or the Holders of the Common Securities before all Preferred Guarantee Payments are paid in full, or provision is made for such payment in money in accordance with the applicable 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 the Preferred Securities or their representative or representatives, or to the trustee or trustees under the Preferred Securities Guarantee Agreement, as their respective interests may appear, as calculated by such trustee or trustees, for application to the payment of all Preferred Guarantee Payments remaining unpaid to the extent necessary to pay such Preferred Guarantee Payments in full in money in accordance with the applicable terms of the Preferred Securities Guarantee Agreement, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of the Preferred Securities. For purposes of this Article only, the words cash, property or securities shall not be deemed to include shares of 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 are subordinated in right of payment to all Preferred Guarantee Payments which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Common Securities are so subordinated as provided in this Article. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation entity or the liquidation or dissolution of the Company Guarantor following the conveyance, conveyance or transfer or lease of its properties and assets substantially as an entirety to another corporation entity upon the terms and conditions set forth in [Article Eight IX] of the Indenture shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Guarantor for the purposes of this Section 1102 if the corporation entity formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation entity which acquires by conveyance, conveyance or transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth in [Article EightIX] of the Indenture.
Appears in 1 contract
Samples: Common Securities Guarantee Agreement (Bergen Brunswig Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets of the Company any Guarantor of any kind or character, whether in cash, prop- erty property or securities, by setto creditors upon any total or partial liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or marshaling of assets of such Guarantor, or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to any Guarantor or its property, whether voluntary or involuntary, all Obligations with respect to all Guarantor 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 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 Debt are paid in full in cash or Cash Equivalents, any distribution to which the Holders or of the Trustee Notes would be entitled but for the pro- visions subordination provisions will be made to the holders of this Article Eleven, including Guarantor Senior Debt as their interests may appear. Upon any such payment dissolution, winding-up, liquidation, reorganization, bankruptcy, insolvency, receivership or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or similar proceeding or similar event described in Subsec- tion (a)assignment for the benefit of creditors or marshaling of assets, (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities assets of any Guarantor of any kind or character, whether in cash, property or securities, to which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity Holders of the Securities and (iii) are subor- dinatedNotes or the Trustee under this Indenture would be entitled, to at least except for the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)provisions hereof, shall be paid by the 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 Notes or otherwiseby the Trustee under this Indenture if received by them, directly to the holders of Guarantor Senior Indebted- ness Debt (PRO RATA to such holders on the basis of the respective amounts of 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 Guarantor Senior Debt remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the until all such Guarantor Senior Indebtedness to the extent necessary to make payment Debt has been paid in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, 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.
(3b) To the extent any payment of 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 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 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 provisions of this Sectionforegoing, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company a Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including shall be received by the Trustee or any Holder when such payment or distribution which may be payable or deliverable is prohibited by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the SecuritiesSection 11.09(a), before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Guarantor Senior Debt (PRO RATA to such holders on the basis of the respective amount of 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 payment of all Guarantor Senior Indebtedness Debt remaining unpaid to the extent neces- sary to pay until all such Guarantor Senior Indebtedness Debt has been paid in full in cash or cash equivalentsCash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Guarantor Senior Indebtedness. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightDebt.
Appears in 1 contract
Samples: Indenture (Air Rental Supply Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets of the Company any Guarantor of any kind or character, whether in cash, prop- erty property or securities, to creditors in an Insolvency or Liquidation Proceeding relating to such Guarantor or its property, whether voluntary or involuntary, all Obligations due upon all Guarantor Senior Debt 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 Debt, by set-off the Guarantor or otherwiseany of its Subsidiaries, before any payment or distribution of any kind or character is made on account of any Obligations on the Notes or the related Guarantee, or for the acquisition, by the Guarantor or any of its Subsidiaries, of any of the Notes or the related Guarantees for cash or property. Upon any such Insolvency or Liquidation Proceeding, any payment or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, to which the Holders of the Notes or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 Notes or otherwiseby the Trustee if received by them, directly to the holders of Guarantor Senior Indebted- ness Debt (pro rata to such holders on the basis of the amounts of Guarantor Senior Debt held by such holders) or their Representative Representatives, as their interests may appear, for application to the payment of the Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt has been paid in full, after giving effect to any concurrent payment, distribution or Representatives provision therefor to or for the holders of Guarantor Senior Debt.
(b) To the extent any payment of 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 Custodian, under any Bankruptcy Law, then, if such payment is recovered by, or paid over to such Custodian, 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.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of a Guarantor 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 12.3(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 Guarantor Senior Debt (pro rata to such holders on the basis of the respective amount of Guarantor Senior Debt held by such holders) or their 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 Guarantor Senior Debt remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the until all such Guarantor Senior Indebtedness to the extent necessary to make payment Debt has been paid in full in cash or cash equivalents of all Senior Indebtedness remaining unpaidCash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution provision therefor to or for the holders of such Guarantor Senior Indebtedness. Debt.
(d) The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation or the liquidation or dissolution of the Company a Guarantor following the conveyance, conveyance or transfer of all or lease substantially all of its properties and assets substantially as an entirety assets, to another corporation upon the terms and conditions set forth provided in Article Eight V hereof shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 12.3 if the such other corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth stated in Article EightV hereof.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets of the Company a Guarantor of any kind or character, whether in cash, prop- erty property, or securities, by setto creditors upon any total or partial liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or marshaling of assets of a Guarantor or in a bankruptcy, reorganization, insolvency, receivership or other similar proceedings relating to a Guarantor or its property, whether voluntary or involuntary, all Guaranteed Obligations due or to become due upon all Guarantor Senior Debt shall first be paid in full in cash or Cash Equivalents (including interest after the commencement of any bankruptcy or like proceeding at the rate specified in the applicable Guarantor Senior Debt, whether or not such interest is an allowed claim in any such proceeding), before any payment or distribution of any kind or character is made on account of any Guaranteed Obligations on 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 a Guarantor of any kind or character, whether in cash, property or securities, to which the Holders of the Notes and the Guarantees or the Trustee under this Indenture would be entitled but entitled, except for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)provisions hereof, shall be paid by the such Guarantor 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 Holders or otherwiseby the Trustee under this Indenture if received by them, directly to the holders of Guarantor Senior Indebted- ness Debt (PRO RATA to such holders on the basis of the respective amounts of 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 Guarantor Senior Debt remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the until all such Guarantor Senior Indebtedness to the extent necessary to make payment Debt has been paid in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, Cash Equivalents after giving effect to any concurrent payment payment, distribution or distribution provision therefore to or for the holders of such Guarantor Senior Indebtedness; andDebt.
(3b) To the extent any payment of 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 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 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. It is further agreed that any diminution (whether pursuant to court decree or otherwise, including without limitation for any of the reasons described in the preceding 82 paragraph) of such Guarantor's obligation to make any distribution or payment pursuant to any Guarantor Senior Debt, except to the extent such diminution occurs by reason of the repayment (which has not been disgorged or returned) of such Guarantor Senior Debt in cash or Cash Equivalents, shall have no force or effect for purposes of the subordination provisions contained in this Article XII, with any turnover of payments as otherwise calculated pursuant to this Article XII to be made as if no such diminution has occurred.
(c) In the event that, notwithstanding the foregoing provisions of this Sectionforegoing, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company any Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including shall be received by the Trustee, any Holder when such payment or distribution which may be payable or deliverable is prohibited by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the SecuritiesSection 12.03(a), before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Guarantor 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 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 payment of all Guarantor Senior Indebtedness Debt remaining unpaid to the extent neces- sary to pay until all such Guarantor Senior Indebtedness Debt has been paid in full in cash or cash equivalentsCash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefore to or for the holders of such Guarantor Senior Indebtedness. Debt.
(d) The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation or the liquidation or dissolution of the Company a Guarantor following the conveyance, conveyance or transfer of all or lease substantially all of its properties and assets substantially as an entirety assets, to another corporation upon the terms and conditions set forth provided in Article Eight Five hereof and as long as permitted under the terms of the Guarantor Senior Debt shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 if the such other corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyanceconveyance or transfer, transfer or lease, comply assume the Guarantor's obligations hereunder in accordance with the conditions set forth in Article EightFive hereof.
Appears in 1 contract
Samples: Indenture (Dade Behring Inc)
Payment Over of Proceeds Upon Dissolution, Etc. of a Guarantor. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to the Company or to its creditors, as such, any Guarantor or to its assets, or (b) any liquidation, dissolution or other winding winding-up of the Companyany Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets and or liabilities of the Companyany Guarantor, then and in any such event:
(1) the holders of all Guarantor Senior Indebtedness shall of such Guarantor must be entitled to receive payment paid in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Cash Equivalents before the Holders of the Securities are entitled to receive receive, pursuant to this Guarantee, any direct or indirect payment or distribution by or on behalf of such Guarantor (excluding Permitted Junior Securities of such Guarantor) on account of principal of (or premium, if any) or interest on the Securitiesits Guarantee; and
(2) any payment or distribution of assets of the Company such Guarantor of any kind or character, whether in cash, prop- erty property or securitiessecurities (excluding Permitted Junior Securities of such Guarantor), by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions subordination provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Twelve shall be paid by the 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 Guarantor Senior Indebted- ness Indebtedness of such Guarantor or their Representative representative or Representatives representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Guarantor Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account 106 98 of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the such Guarantor Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents Cash Equivalents of all such Guarantor Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 12.05, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company such Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason in respect of the payment Guarantee of any other indebt- edness of the Company being subordinated to the payment of the Securities, such Guarantor before all Guarantor Senior Indebtedness of such Guarantor is paid in full in cash or payment thereof provided forCash Equivalents, then and in such event such payment or distribution (excluding Permitted Junior Securities of such Guarantor) 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 Company such Guarantor for application to the payment of all such Guarantor Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all of such Guarantor Senior Indebtedness in full in cash or cash equivalents, Cash Equivalents after giving effect to any concurrent payment or distribution to or for the holders of such Guarantor Senior Indebtedness. The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation person or the liquidation or dissolution of the Company a Guarantor following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation person upon the terms and conditions set forth in Article Eight Five hereof shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company a Guarantor for the purposes of this Section 1102 Article if the corporation person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article EightFive.
Appears in 1 contract
Samples: Indenture (Interface Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 Guarantor or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the CompanyGuarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling marshaling of assets and liabilities of the CompanyGuarantor, then and in any such event:
(1) event the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalentspayment, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on under the Securities; and
(2) any Guarantees. Any payment or distribution of assets of under the Company of any kind or characterGuarantees, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled otherwise (but for the pro- visions of this Article Eleven, including any such payment or distribution which may these provisions) be payable or deliverable by reason in respect of the payment Guarantees shall be paid and delivered directly to the holders of Senior Indebtedness in accordance with the priorities then existing among such holders until all Senior Indebtedness shall have been paid in full. Upon the occurrence of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event events described in Subsec- tion clauses (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtednessimmediately preceding paragraph, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, that notwithstanding the foregoing provisions of this Section, Section the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, 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 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 payment of all Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Indebtedness in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation Person or the liquidation or dissolution of the Company Guarantor following the conveyance, conveyance or transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight Nine shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company Guarantor for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation which acquires by conveyance, conveyance or transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the respective conditions set forth in Article EightNine.
Appears in 1 contract
Samples: Indenture (Zions Financial Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event If an Indenture Event of (a) any insolvency or bankruptcy case or proceedingDefault has occurred and is continuing, 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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive upon any payment on account of principal of (or premium, if any) or interest on by the Securities; and
(2) any payment Guarantor or distribution of assets of the Company Guarantor of any kind or character, whether in cash, prop- erty property or securities, to creditors upon any dissolution or winding-up or liquidation or reorganization of the Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all amounts due upon all Preferred Guarantee Payments shall first be paid in full, or payment thereof provided for in money in accordance with the terms of the Preferred Securities Guarantee Agreement, before any payment is made by setthe Guarantor on account of any Guarantee Payments under this Common Securities Guarantee Agreement; and upon any such dissolution or winding-off up or otherwiseliquidation or reorganization, any payment by the Guarantor, or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, to which the Holders of the Common Securities or the Common Guarantee Trustee would be entitled but to receive from the Guarantor, except for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)Article, shall be paid by the liquidating Guarantor or by any receiver, trustee or in bankruptcy, liquidation trustee, agent or other person making such payment or distribution, whether a trustee in bankruptcyor by the Holders of the Common Securities or by the Common Guarantee Trustee under this Common Securities Guarantee Agreement, a receiver if received by them or liquidating trustee or otherwiseit, directly to the holders of Senior Indebted- ness the Preferred Securities (pro rata to such holders on the basis of the respective amounts of Preferred Securities held by such holders, as calculated by the trustee or trustees under the Preferred Securities Guarantee Agreement) or their Representative representative or Representatives representatives, or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness the Preferred Securities Guarantee Agreement, as their respective interests may have been issuedappear, ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment pay such Preferred Guarantee Payments in full full, in cash money 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalentsmoneys worth, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtednesssuch Preferred Securities, before any payment or distribution is made to the Holders of the Common Securities or to the Common Guarantee Trustee hereunder. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Common Guarantee Trustee or the Holders of the Common Securities before all Preferred Guarantee Payments are paid in full, or provision is made for such payment in money in accordance with the applicable 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 the Preferred Securities or their representative or representatives, or to the trustee or trustees under the Preferred Securities Guarantee Agreement, as their respective interests may appear, as calculated by such trustee or trustees, for application to the payment of all Preferred Guarantee Payments remaining unpaid to the extent necessary to pay such Preferred Guarantee Payments in full in money in accordance with the applicable terms of the Preferred Securities Guarantee Agreement, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of the Preferred Securities. For purposes of this Article only, the words cash, property or securities shall not be deemed to include shares of 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 are subordinated in right of payment to all Preferred Guarantee Payments which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Common Securities are so subordinated as provided in this Article. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation entity or the liquidation or dissolution of the Company Guarantor following the conveyance, conveyance or transfer or lease of its properties and assets substantially as an entirety to another corporation entity upon the terms and conditions set forth in Article Eight of the Indenture shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company Guarantor for the purposes of this Section 1102 if the corporation entity formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation entity which acquires by conveyance, conveyance or transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth in Article EightEight of the Indenture.
Appears in 1 contract
Samples: Common Securities Guarantee Agreement (Bergen Brunswig Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency payment or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to distribution of assets of the Company or any Subsidiary Guarantor to its creditors, as such, or to its assets, or (b) creditors upon any liquidation, dissolution or other winding up of the Companydissolution, whether voluntary or involuntary and whether or not involving insolvency or bankruptcywinding-up, or (c) any reorganization, assignment for the benefit of creditors creditors, marshaling of assets or any other marshalling bankruptcy, insolvency or similar proceedings, whether voluntary or involuntary, of the Company or any Subsidiary Guarantor (the Company or such Subsidiary Guarantor being the "Affected Obligor"), then (except (x) 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 liabilities conditions described in Article Eight or (y) in connection with the consolidation or merger of a Subsidiary Guarantor, or its liquidation or dissolution, not in violation of any provision of this Indenture) (each such event referred to in clause (x) or (y) above, if any, herein sometimes referred to as a "Proceeding"), (i) if the Affected Obligor is the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall first be entitled to receive payment in full full, in cash or cash equiv- alents equivalents, of all amounts due or to become due on or in respect of all such Senior IndebtednessIndebtedness (including, or provision shall be made for to the extent permitted by applicable law, interest accruing after the commencement of any such payment in cash or cash equivalents, Proceeding at the rate specified therein) before the Holders of the Securities are entitled to receive any payment or distribution of any kind with respect to the Securities or on account of principal the purchase or redemption or other acquisition of Securities by the Company or any Subsidiary of the Company and (ii) if the Affected Obligor is a Subsidiary Guarantor, the holders of Subsidiary Guarantor Senior Indebtedness of such Subsidiary Guarantor shall first be entitled to receive payment in full, in cash or premiumcash equivalents, if anyof all amounts due or to become due on or in respect of such Subsidiary Guarantor Senior Indebtedness (including, to the extent permitted by applicable law, interest accruing after the commencement of any such Proceeding at the rate specified therein) or interest on before the Securities; and
(2) Holders of the Securities are entitled to receive any payment or distribution of assets any kind with respect to the Subsidiary Guarantee of such Subsidiary Guarantor (any payment on or purchase, redemption or acquisition of the Company Securities, referred to in clause (i), and any payment on a Subsidiary Guarantee, referred to in clause (ii), being, individually and collectively, a "Securities Payment"), and, to that end, if the Affected Obligor is the Company, the holders of Senior Indebtedness and, if the Affected Obligor is a Subsidiary Guarantor, the holders of Subsidiary Guarantor Senior Indebtedness of such Subsidiary Guarantor (such Senior Indebtedness or Subsidiary Guarantor Senior Indebtedness, as the case may be, being "Affected Obligor Senior Indebtedness" of such Affected Obligor) shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution securities which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity respect of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee or agent or other person making in any such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in Proceeding. 100 In the event that, notwithstanding the foregoing provisions of this SectionSection 1402, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company an Affected Obligor of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, character before all Affected Obligor Senior Indebtedness is paid in full or payment thereof provided forfull, then and in such event such payment or distribution distribution, except for amounts subject to the claim granted to the Trustee in Section 606 hereof, shall be held in trust for the holders of Affected Obligor 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 Company Affected Obligor for application to the payment of all Affected Obligor Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Affected Obligor Senior Indebtedness in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders of the Affected Obligor Senior Indebtedness. The consolidation For purposes of this Article Fourteen only, the Company withwords "any payment or distribution of any kind or character, cash, property or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight securities" shall not be deemed to include a dissolution, winding up, liquidation, reorganization, assignment for the benefit payment or distribution of creditors equity or marshalling of assets and liabilities subordinated securities of the Company Affected Obligor provided for the purposes by a plan of this Section 1102 if the reorganization or readjustment or of any other corporation formed provided for by such consolidation plan of reorganization or into which readjustment that, in the Com- pany is merged case of subordinated securities, are subordinated in right of payment to all then outstanding Affected Obligor Senior Indebtedness to at least the same extent as the Securities or the corporation which acquires by conveyance, transfer or lease such properties and assets substantially as an entiretySubsidiary Guarantees, as the case may be, shall, are so subordinated as a part of such con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth provided in this Article EightFourteen.
Appears in 1 contract
Samples: Indenture (Breed Technologies Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) Upon any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to payment by the Company or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to its creditors, as such, or to its assets, or (b) creditors upon any liquidation, dissolution or other winding winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary and whether or not involving insolvency or in bankruptcy, insolvency, receivership or (c) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Companyproceedings, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of upon all Senior IndebtednessDebt of the Company shall first be paid in full, or provision shall be made payment thereof provided for such payment in cash or cash equivalentsmoney in accordance with its terms, before the Holders of the Securities are entitled to receive any payment is made by the Company on account of the principal of (or and premium, if any) or interest on the SecuritiesSecurities of any series (or any Coupons appertaining thereto); and
and upon any such dissolution or winding-up or liquidation or reorganization, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Securities of such series (2or any Coupons appertaining thereto) or the Trustee would be entitled to receive from the Company, except for the provisions of this Article 15, 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 of such series (or any Coupons appertaining thereto) or by the Trustee under the Indenture if received by them or it, directly to the holders of Senior Debt of the Company (pro rata to such holders on the basis of the respective amounts of Senior Debt 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 Debt may have been issued, as their respective interests may appear, to the extent necessary to pay such Senior Debt 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 Debt, before any payment or distribution is made to the Holders of the Securities of such series (or any Coupons appertaining thereto) 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, prop- erty property or securities, prohibited by set-off or otherwisethe foregoing, to which the Holders or shall be received by the Trustee would be entitled but before all Senior Debt of the Company is paid in full, or provision is made for the pro- visions of this Article Elevensuch payment in money in accordance with its terms, including any such payment or distribution which may shall be payable or deliverable by reason held in trust for the benefit of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee over or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly delivered to the holders of such Senior Indebted- ness Debt or their Representative representative or Representatives representatives, or to the trustee or trustees under any indenture under pursuant to which any instruments evidencing any of such Senior Indebtedness Debt may have been issued, ratably according to and their respective interests may appear, as calculated by the aggregate amounts remaining unpaid on account of the principal ofCompany, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness Debt of the Company, as the case may be, remaining unpaid to the extent neces- sary necessary to pay all such Senior Indebtedness Debt in full in cash or cash equivalentsmoney 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 IndebtednessDebt. For purposes of this Article 15 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 Debt which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Securities of any series (or any Coupons appertaining thereto) are so subordinated as provided in this Article 15. The consolidation of the Company with, or the merger of the Company into, another corporation Person or the liquidation or dissolution of the Company following the conveyance, conveyance or transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 9 shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Company is merged or or, the corporation Person which acquires by conveyance, conveyance or transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth in Article Eight9.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets of the Company a Guarantor of any kind or character, whether in cash, prop- erty property, or securities, by set-off to creditors upon any total or otherwisepartial liquidation, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of a Guarantor or in a bankruptcy, reorganization, insolvency, receivership or other similar proceedings relating to a Guarantor or its property, whether voluntary or involuntary, all Guaranteed Note Obligations due or to become due upon all Guarantor Senior Debt shall first be paid in full in cash or Cash Equivalents (including interest after the commencement of any bankruptcy or like proceeding at the rate specified in the applicable Guarantor Senior Debt, whether or not such interest is an allowed claim in any such proceeding), before any payment or distribution of any kind or character is made on account of any Guaranteed Note Obligations on, or with respect to, the Notes, or for the acquisition of any of the Company 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 a Guarantor of any kind or character, whether in cash, property or securities, to which the Holders of the Notes and the Guarantees or the Trustee under this Indenture would be entitled, except for the purposes of this Section 1102 if the corporation formed provisions hereof, shall be paid by such consolidation Guarantor or into 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 (pro rata to such holders on the basis of the respective amounts of Guarantor Senior Debt held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which the Com- pany is merged or the corporation which acquires by conveyance, transfer or lease any of such properties and assets substantially as an entiretyGuarantor Senior Debt may have been issued, as their respective interests may appear, for application to the case may bepayment of 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, shalldistribution or provision therefore to or for the holders of such Guarantor Senior Debt.
(b) To the extent any payment of Guarantor Senior Debt (whether by or on behalf of such Guarantor, as a 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 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. It is further agreed that any diminution (whether pursuant to court decree or otherwise, including without limitation for any of such con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth reasons described in Article Eight.the preceding
Appears in 1 contract
Samples: Indenture (Federal Mogul Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, arrangement, 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 voluntary or involuntary, or (b) any liquidation, dissolution or other winding 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 marshalling of assets and or liabilities of the CompanyCompany (except in connection with the merger or consolidation of the Company or its liquidation or dissolution following the transfer of substantially all of its assets, upon the terms and conditions permitted under the circumstances described in Section 5.1), then and in any such event:
(1) the holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or cash equiv- alents and satisfaction of all amounts Obligations due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness and before the Holders of the Securities are entitled to receive or retain any payment or distribution of any kind or character (other than a payment or distribution made out of the Defeasance Trust) on account of principal of (or of, premium, if any) , or interest on the Securities; and
(2) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 10.2, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company of any kind or char- acterkind, whether in cash, property or securities, including any including, without limitation, by way of set-off or otherwise, in respect of principal of, premium, if any, and interest on the Securities before all Obligations in respect of Senior Indebtedness are paid and satisfied in full in cash, then such payment or distribution which may be payable or deliverable by reason of the payment of any (other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such than a payment or distribution shall made 83 -75- out of the Defeasance Trust) will be held by the recipient in trust for the benefit of holders of Senior Indebtedness and will be immediately 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 for an application to the payment of all Obligations with respect to Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalentsunpaid, 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 corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight V hereof shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company for the purposes of this Section 1102 Article if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightV hereof.
Appears in 1 contract
Samples: Indenture (Lamar Advertising Co)
Payment Over of Proceeds Upon Dissolution, Etc. In Upon any distribution of the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding Guarantor's assets in connection therewithwith any dissolution, relative to the Company winding-up, liquidation or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up reorganization of the CompanyGuarantor, whether voluntary or involuntary and whether or not involving involuntary, in bankruptcy, insolvency or bankruptcyreceivership proceedings (each such event, if any, herein sometimes referred to as a "Proceeding"), or (c) any upon an assignment for the benefit of creditors or otherwise: (i) all Guarantor Senior Debt (including without limitation all interest accruing on or after the filing of any other marshalling of assets and liabilities of petition in bankruptcy relating to the CompanyGuarantor at the relevant contractual rate, then and whether or not such claim for post-petition interest is allowed in any such event:
(1Proceeding) the holders of Senior Indebtedness shall must be entitled to receive payment paid in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment payments or distributions of any kind or character on account of principal of any Guarantee Payments pursuant to this Guarantee Agreement, and (or premium, if any) or interest on the Securities; and
(2ii) any payment or distribution of the Guarantor's assets of the Company of any kind or character, whether in cash, prop- erty securities or securitiesother property, by set-off or otherwise, to which the Holders or the Trustee would be entitled otherwise (but for the pro- visions of this Article Eleven, including any such payment or distribution which may these subordination provisions) be payable or deliverable by reason in respect of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Guarantee Payments shall be paid by 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, delivered directly to the holders of such Guarantor Senior Indebted- ness Debt (or their Representative 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 holders until all Guarantor Senior Indebtedness may Debt shall have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment paid in full in cash before any payment or cash equivalents distribution is made to the Holders. In the event that, notwithstanding the subordination provisions set forth herein, any payment or distribution of assets of any kind or character is made 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 Guarantor Senior Indebtedness remaining unpaidDebt is paid in full in cash, after giving effect the Guarantee Trustee or the Holders receiving such payment will be required to any concurrent pay over such payment or distribution to the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation Person or the liquidation or dissolution of the Company Guarantor following the conveyance, transfer sale of all or lease substantially all of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 8 of the Indenture shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Proceeding for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation Person which acquires by conveyance, transfer or lease sale such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer or lease, sale comply with the conditions set forth in Article Eight8.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Securities in the event of (a) any insolvency Insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative Liquidation Proceeding with respect to the Company or to its creditors, as such, or to its assets, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1a) the holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or cash equiv- alents equivalents of all amounts due or to become due on or in respect of all such Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness before the Holders of the 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 or from any defeasance trust created pursuant to Article 12 hereof) on account of principal of (or premium, ---------- if any, on) or interest on the SecuritiesSecurities or on account of the purchase or redemption or other acquisition of the Securities (including pursuant to an optional redemption, a Change of Control Offer or a Net Proceeds Offer); andhowever, the consolidation or merger of the Company or its liquidation or dissolution following the conveyance, transfer, lease, or other disposition of all or substantially all the properties and assets of the Company and its Restricted Subsidiaries on a consolidated basis in compliance with Article 8 --------- shall not be deemed an insolvency or liquidation proceeding requiring the repayment of all of the Senior Indebtedness in full in cash or cash equivalents as a prerequisite to any payments being made to holders of Securities for the purposes of the subordination provisions of the Indenture.
(2b) any direct or indirect payment or distribution of assets Properties of the Company of any kind or character, whether in cash, prop- erty property or securitiessecurities (other than a payment or distribution in the form of Permitted Junior Securities or from any defeasance trust created pursuant to Article 12 hereof), by set-off or ---------- otherwise, to which the Holders or the Trustee Trustee, on behalf of the Holders, would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall 12 will 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 Indebted- ness Indebtedness or their Representative representative or Representatives 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, and other amounts due on or in connection with, 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
(3c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall will have received any such payment or dis- tribution distribution of assets Properties of the Company of any kind or char- actercharacter, whether in cash, property or securities, including any such payment by set-off or distribution which may be payable otherwise, in respect of principal of (and premiums, if any, on) or deliverable by reason of interest on the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, Securities before all Senior Indebtedness is paid in full in cash or payment thereof provided forcash equivalents, then and in such event such payment or distribution shall (other than a payment or distribution in the form of Permitted Junior Securities or from any defeasance trust created pursuant to Article 12 hereof) will 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 for application to the payment of all Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer transfer, lease or lease other disposition of all or substantially all its properties and assets substantially as an entirety Properties to another corporation upon Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight shall 8 hereof will not be deemed an Insolvency or Liquidation Proceeding --------- (requiring the repayment of all Senior Indebtedness in full as a dissolution, winding up, liquidation, reorganization, assignment for prerequisite to any payments being made to the benefit of creditors or marshalling of assets and liabilities of the Company Holders) for the purposes of this Section 1102 if the corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightSection.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets or securities of the Company any Guarantor of any kind or character, whether in cash, prop- erty property or securities (excluding any payment or distribution of Permitted Junior Guarantor Securities and payments from the Interest Escrow Account), upon any dissolution or other winding-up or liquidation, rearrangement or reorganization of such Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings or any general assignment for the benefit of creditors or other marshalling of assets or liabilities of such Guarantor (except in connection with the merger or consolidation of such Guarantor or liquidation or dissolution following the transfer of substantially all of its assets, upon the terms and conditions permitted under the circumstances described in Section 5.01), all Guarantor Senior Indebtedness of such Guarantor shall first be paid and satisfied in full in cash before the Holders of the Securities or the Trustee on behalf of such Holders shall be entitled to receive any payment by such Guarantor with respect to its Guaranty (other than payments from the Interest Escrow Account), or any payment by such Guarantor to acquire any of the Securities for cash, property or securities, or any distribution by such Guarantor with respect to the Securities of any cash, property or securities (excluding any payment or distribution of Permitted Junior Guarantor Securities and excluding payments from the Interest Escrow Account). Before any payment may be made by, or on behalf of, any Guarantor of the principal of, premium, if any, or interest on the Securities (other than payments from the Interest Escrow Account) upon any such dissolution or winding-up or liquidation, rearrangement or reorganization, any payment or distribution of assets or securities of such Guarantor of any kind or character, whether in cash, property or securities (excluding any payment or distribution of Permitted Junior Guarantor Securities and excluding payments from the Interest Escrow Account) to which the Holders of the Securities or the Trustee on their behalf would be entitled, but for the subordination provisions of this Indenture, shall be made by such Guarantor or by any receiver, trustee in bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, directly to the holders of the Guarantor Senior Indebtedness of such Guarantor (pro rata to such holders on the basis of the respective amounts of such Guarantor Senior Indebtedness held by such holders) or their representatives or to the trustee or trustees or agent or agents under any agreement or indenture pursuant to which any of such Guarantor Senior Indebtedness might have been issued, as their respective interests may appear, to the extent necessary to pay all such Guarantor Senior Indebtedness in full in cash after giving effect to any prior or concurrent payment, distribution or provision therefor to or for the holders of such Guarantor Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision prohibiting such payment or distribution, the Trustee or any Holder of Securities receives any payment or distribution of assets of a Guarantor of any kind, whether in cash, property or securities (excluding any payment or distribution of Permitted Junior Guarantor Securities and excluding payments from the Interest Escrow Account), including, without limitation, by way of set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions in respect of this Article Eleven, including any such Guarantor's Guaranty at a time when such payment or distribution which may be payable or deliverable is prohibited by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the 12.03 and before all Guarantor Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtednesssuch Guarantor is paid and satisfied in full in cash, for any then such payment or distribution shall be held by the recipient in trust for the benefit of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity holders of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Guarantor Senior Indebtedness then outstanding), shall of such Guarantor and will be immediately paid by the liquidating trustee over 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 Indebted- ness or their Representative or Representatives or delivered to the trustee in bankruptcy or trustees under any indenture under which any instruments evidencing any such other Person making payment or distribution of assets 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, and other amounts due on or in connection with, the Senior Indebtedness Guarantor to the extent necessary to make payment in full in cash or cash equivalents of all Guarantor Senior Indebtedness of such Guarantor remaining unpaid, after giving effect to any concurrent current payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event thatdistribution, notwithstanding the foregoing provisions of this Sectionor provision therefor, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Guarantor Senior IndebtednessIndebtedness of such Guarantor. The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another a corporation or the liquidation or dissolution of the Company a Guarantor following the conveyance, conveyance or transfer or lease of its properties and assets property as an entirety, or substantially as an entirety entirety, to another a corporation upon the terms and conditions set forth provided in Article Eight Five shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 12.03 if the such corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth stated in Article EightFive. The consolidation of any Guarantor with, or the merger of any Guarantor with or into the Company or any other Guarantor, or the liquidation or dissolution of any Guarantor following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to the Company or any other Guarantor shall not be deemed a dissolution, winding-up, liquidation or reorganization for purposes of this Section 12.03.
Appears in 1 contract
Samples: Indenture (Digital Television Services of Kansas LLC)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets of the Company Issuer of any kind or character, whether in cash, prop- erty 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 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 for cash or property is made other than conversion of the Notes into Common Shares in accordance with Section 7.1 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 or of the Trustee Notes would be entitled but entitled, except for the pro- visions of this Article Elevenprovisions hereof, including any such payment or distribution which may be payable or deliverable by reason other than conversion of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated Notes into Common Shares in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this accordance with Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)7.1 hereof, shall be paid by the Issuer 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 or otherwiseby the Holders of the Notes if received by them, directly to the holders of Senior Indebted- ness Debt (pro rata to such holders on the basis of the respective amounts of 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 Senior Indebtedness Debt may have been issued, ratably according as their respective interests may appear, for application to the aggregate amounts payment of Senior Debt remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the until all such Senior Indebtedness to the extent necessary to make payment Debt has been paid in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of Senior Debt.
(b) Notwithstanding the foregoing, in the event that any payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company Issuer of any kind or char- actercharacter, whether in cash, property or securities, including other than conversion of the Notes into Common Shares in accordance with Section 7.1 hereof, shall be received by any Holder when such payment or distribution which may be payable or deliverable is prohibited by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the SecuritiesSection 5.3(a), before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be 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 payment of all Senior Indebtedness Debt remaining unpaid to the extent neces- sary to pay until all such Senior Indebtedness Debt has been paid in full in cash or cash equivalentsfull, 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 Section 5 of this Note, the Company withwords "cash, property or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight securities" shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit to include (x) shares of creditors or marshalling of assets and liabilities stock of the Company Issuer as reorganized or readjusted, (y) any payment or distribution of securities of the Issuer or any other Issuer authorized by an order or 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 (z) securities of the Issuer or any other Issuer provided for by a plan of reorganization or readjustment which are subordinated, to at least the purposes same extent as the Notes, to the payment of all Senior 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 5, (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 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 1102 if 5 shall not be subject to any claim by or on behalf of the corporation formed by such consolidation or into which the Com- pany is merged or the corporation which acquires by conveyance, transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as a part holders of such con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightSenior Debt.
Appears in 1 contract
Samples: Securities Purchase Agreement (Morgan Stanley Dean Witter & Co)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 Guarantor or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the CompanyGuarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of or creditors or any other marshalling marshaling of assets and liabilities of the CompanyGuarantor, then and in any such event:
(1) event the holders of Senior Guarantor Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Guarantor Indebtedness, or provision shall be made for such payment in cash money or cash equivalentsmoney's worth, before the Holders of the Securities Guarantees are entitled to receive any payment under the Guarantees on account of principal of (or on, premium, if any) , or interest on the Securities; and
(2) Securities and to that end the holders of Senior Guarantor Indebtedness shall be entitled to receive, for application to the payment thereof, any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason in respect of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated Guarantees in any case or proceeding or similar event described in Subsec- tion (a)such case, (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtednessproceeding, for any such payment or distribution of securities which (i) are unsecureddissolution, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee or agent liquidation or other person making such payment winding up or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in event. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security in respect of the related Guarantee shall have received any such payment or dis- tribution distribution of assets of the Company Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Guarantor Indebtedness is paid in full or payment thereof provided for, 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 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 payment of all Senior Guarantor Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Guarantor Indebtedness in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders holder of Senior Guarantor Indebtedness. For purposes of this Article Eighteen only, the words "cash, property or securities" shall not be deemed to include shares of 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 110 readjustment, which are subordinated in right of payment to all Senior Guarantor Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Guarantees are so subordinated as provided in this Article Eighteen. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation Person or the liquidation or dissolution of the Company Guarantor following the conveyance, conveyance or transfer of all or lease substantially all of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company Guarantor for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation which acquires by conveyance, conveyance or transfer all or lease substantially all of such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth in Article Eight.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets of the Company any Guarantor of any kind or character, whether in cash, prop- erty or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including to creditors upon any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securitiesliquidation, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of such Guarantor, or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to any Guarantor or its property, whether voluntary or involuntary, all Obligations (including interest accruing after the commencement date of any such proceeding whether or not allowable as a claim in any such proceeding) 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 any kind or character is made on account of any Obligations on the Notes any of the Company Obligations of such Guarantor on its Guarantee, or for the purposes acquisition of any of the Notes for cash or property or otherwise (except that Holders of Notes may receive and retain Permitted Junior Securities and payments made from the trust described under Article Eight); and until all such Obligations with respect to all Guarantor 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 Guarantor Senior Debt as their interests may appear (except that Holders of Notes may receive and retain Permitted Junior Securities and payments made from the trust described under Article Eight). Upon any such dissolution, winding-up, liquidation, reorganization, bankruptcy, insolvency, receivership or similar proceeding or assignment for the benefit of creditors or marshalling of assets, 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 Section 1102 if Indenture would be entitled, except for the corporation formed provisions hereof, shall be paid by such consolidation Guarantor or into 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 Guarantor Senior Debt (pro rata to such holders on the basis of the respective amounts of Guarantor Senior Debt held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which the Com- pany is merged or the corporation which acquires by conveyance, transfer or lease any of such properties and assets substantially as an entiretyGuarantor Senior Debt may have been issued, as their respective interests may appear, for application to the case payment of 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 Guarantor Senior Debt (except that Holders of Notes may be, shallreceive and retain Permitted Junior Securities and payments made from the trust described under Article Eight).
(b) To the extent any payment of 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 other similar person under any bankruptcy, 100 -93- 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 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 a part Guarantor 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 11.11(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 Guarantor Senior Debt (pro rata to such holders on the basis of the respective amount of 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 con- solidationGuarantor Senior Debt may have been issued, mergeras their respective interests may appear, conveyancefor application to the payment of Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt has been paid in full in cash or Cash Equivalents, transfer after giving effect to any concurrent payment, distribution or lease, comply with provision therefor to or for the conditions set forth in Article Eightholders of such Guarantor Senior Debt.
Appears in 1 contract
Samples: Indenture (Landmark Theatre Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) Upon any insolvency payment or bankruptcy case distribution of assets or proceedingsecurities of the Issuer of any kind or character, whether in cash, property or securities, upon 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, or (b) any liquidation, dissolution or other winding winding-up or liquidation or reorganization of the CompanyIssuer, whether voluntary or involuntary and whether or not involving insolvency or in bankruptcy, insolvency, receivership or (c) any other similar proceedings, an assignment for the benefit of creditors or any other marshalling of assets and liabilities marshaling of the CompanyIssuer’s assets, then and in any such event:
(1) the holders of Senior Indebtedness Debt of the Issuer shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts Obligations due or to become due on or in respect of all such Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Debt before the Holders or the Trustee on behalf of the Securities are such Holders shall be entitled to receive any payment on account by the Issuer of the principal of (or premium, if any) or interest on the Securities; and
, or any payment by the Issuer 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 (2except that the Holders may receive and retain (I) Permitted Junior Securities and (II) payments made from the defeasance trust described under Article 8). Before any payment (other than Permitted Junior Securities or by virtue of the defeasance trust) may be made by, or on behalf of, the Issuer of the principal of or interest on the Securities upon any such dissolution or winding- up or liquidation or reorganization, any payment or distribution of assets or securities of the Company Issuer of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders of the Securities or the Trustee on their behalf would be entitled entitled, but for the pro- visions subordination provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)Indenture, shall be paid made by the Issuer 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 or otherwise, directly to the holders of the Senior Indebted- ness Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders) or their Representative or Representatives representatives or to the trustee or trustees or agent or agents under any agreement or indenture under pursuant to which any instruments evidencing any of such Senior Indebtedness Debt may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal ofas their respective interests may appear, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment pay all such Senior Debt in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any prior or concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior Indebtedness; andDebt.
(3b) in In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any provision prohibiting such payment or dis- tribution distribution, any payment or distribution of assets or securities of the Company Issuer of any kind or char- actercharacter, whether in cash, property or securities, including shall be received by the Trustee or any Holder of Securities at a time when such payment or distribution which may be payable or deliverable is prohibited by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, Section 10.03(a) and before all Obligations in respect of Senior Indebtedness is Debt are paid in full in cash, or payment thereof provided for, then and in such event such payment or distribution 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 of the Issuer (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 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 Company such Senior Debt may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness Debt remaining unpaid to the extent neces- sary to pay until all such Senior Indebtedness Debt has been paid in 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 IndebtednessDebt; provided that the Trustee shall be entitled to receive from the holders of such Senior Debt written notice of the amounts owing on such Senior Debt. The consolidation of the Company Issuer with, or the merger of the Company Issuer with or into, another corporation Person or the liquidation or dissolution of the Company Issuer following the conveyance, conveyance or transfer or lease of its properties and assets property as an entirety, or substantially as an entirety entirety, to another corporation Person upon the terms and conditions set forth provided in Article Eight 5 shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 10.03 if the corporation formed by such consolidation or into which the Com- pany is merged or the corporation which acquires by conveyance, transfer or lease such properties and assets substantially as an entirety, as the case may be, other Person shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth stated in Article Eight5.
Appears in 1 contract
Samples: Indenture (Scientific Games Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding 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 marshalling of assets and or liabilities of the CompanyCompany (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 under Article Eight), then and in any such event:
(1) the holders of Senior Indebtedness shall first be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect equivalents of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalentsfull, before the Holders of the Securities are will be entitled to receive any payment or distribution of any kind or character (other than any payment or distribution in the form of equity securities or subordinated securities of the Company or any successor obligor that, 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 Notes are so subordinated as provided in this Indenture (such equity securities or subordinated securities hereinafter being "Permitted Junior Securities") and any payment made pursuant to Article Fourteen from monies or U.S. Government Obligations previously deposited with the Trustee) on account of principal of (or premium, if any) or interest on the SecuritiesNotes or on account of the purchase or redemption or other acquisition of Notes; and
(2) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securitiessecurities (other than a payment or distribution in the form of Permitted Junior Securities and any payment made pursuant to Article Fourteen from monies or U.S. Government Obligations previously deposited with the Trustee), by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Indenture shall be paid by the 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 Indebted- ness 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, representative ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Company is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article Eight.
Appears in 1 contract
Samples: Indenture (Tmil Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding winding-up of the Company, 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 marshalling of assets and or liabilities of the Company, Company then and in any such event:event (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture upon the Senior Indebtedness and the holders thereof with respect to the Securities and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law):
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full full, in cash or cash equiv- alents equivalents or, as acceptable to the holders of all amounts due or to become due on or Senior Indebtedness, in respect any other manner, of all Senior Indebtedness (including principal, premium, if any and interest, if any, and including, in the case of Designated Senior Indebtedness, any interest accruing subsequent to the filing of a petition for bankruptcy at the rate provided for in the documentation governing such Designated Senior Indebtedness, to the extent that such interest is an allowed claim under applicable law), or provision shall be made for such payment in cash or cash equivalentspayment, before the Holders of the Securities are entitled to receive any payment or distribution of any kind or character (excluding securities of the Company or any other person that are equity securities or are expressly subordinated in right of payment to all Senior Indebtedness that may at the time be outstanding, to substantially the same extent as, or to a greater extent than, the Securities as provided in this Article; such securities are hereinafter collectively referred to as "Permitted Junior Securities") on account of principal of (or of, premium, if any) , or interest on the Securities; and;
(2) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securitiessecurities (excluding Permitted Junior Securities), by set-off or otherwise, to which the Holders of the Securities or the Trustee for the Securities of such series would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Fourteen shall be paid by 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, directly to the holders of Senior Indebted- ness Indebtedness or their Representative representative or Representatives 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, and other amounts due on or in connection with, the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full full, in cash or cash equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 1402, the Trustee for any series of Securities or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company of any kind or char- actercharacter, whether in cash, property or securities, including any such payment in respect of principal of, premium, if any, or distribution which may be payable or deliverable by reason of interest, if any, on the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, Securities before all Senior Indebtedness is paid in full full, in cash or cash equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, or payment thereof provided for, then and in such event such payment or distribution (excluding Permitted Junior Securities) 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 for application to the payment of all Senior Indebtedness remaining unpaid unpaid, ratably as aforesaid, to the extent neces- sary necessary to pay all Senior Indebtedness in full full, in cash or cash equivalentsequivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation or amalgamation of the Company with, or the merger of the Company with or into, another corporation person or the liquidation or dissolution of the Company following the conveyance, transfer transfer, lease or lease other disposition of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight hereof shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 Article Fourteen if the corporation Person formed by such consolidation or into which the Com- pany is merged amalgamation or the corporation surviving entity of such merger or the Person which acquires by conveyance, transfer transfer, lease or lease other disposition such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, amalgamation, merger, conveyance, transfer transfer, lease or leaseother disposition, comply with the conditions set forth in such Article Eight.
Appears in 1 contract
Samples: Indenture (Ingersoll Rand Co LTD)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or 57 other similar case or proceeding in connection therewith, relative to the Company Borrower or to its creditorsany Guarantor (each, as such, an "OBLIGOR") or to its assets, or (b) any liquidation, dissolution or other winding up of the Companyany Obligor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling marshaling of assets and or liabilities of the Companyany Obligor, then and in any such event:
(1) the holders of Senior Indebtedness of such Obligor shall be entitled to receive payment paid in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all such Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities Lenders are entitled to receive any payment or distribution of any kind or character (excluding Junior Securities) on account of the principal of (or of, premium, if any) , or interest on the Securities; andObligations of such Obligor;
(2) any payment or distribution of assets of the Company such Obligor of any kind or character, whether in cash, prop- erty property or securitiessecurities (excluding Junior Securities), by set-off or otherwise, to which the Holders or the Trustee Lenders would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) provisions of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior 11.2 shall, subject to the Senior Indebtednessclause (4) below, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 Indebted- ness or their Representative or Representatives Indebtedness of such Obligor or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issuedAgent, ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the such Senior Indebtedness held by such holder, to the extent necessary to make payment in full in cash or cash equivalents of all such Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and, whether such concurrent payment or distribution represents a payment on account of such Senior Indebtedness or a payment or distribution to such holders pursuant to Section 1407 of the Subordinated Note Indenture or any Existing Note;
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security Lender shall have received any such direct or indirect payment or dis- tribution distribution of assets of the Company such Obligor of any kind or char- actercharacter, whether in cash, property or securities, including any in respect of principal, premium, if any, and interest on the Obligations of such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, Obligor before all Senior Indebtedness of such Obligor is paid in full or payment thereof provided forfull, then and in such event such payment or distribution (excluding Junior Securities) shall, subject to clause (4) below, be held in trust for the benefit of, and shall be promptly 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 such Obligor for application to the payment of all Senior Indebtedness of such Obligor remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Indebtedness of such Obligor in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness, whether such concurrent payment or distribution represents a payment on account of such Senior Indebtedness or a payment or distribution to such holders pursuant to Section 1407 of the Subordinated Note Indenture or any Existing Note; and
(4) notwithstanding any provision to the contrary contained in this Section 11.2, the payments and distributions to the Lenders shall not be required to be paid over as provided in clauses (2) and (3), except to the extent that the holders of the Senior Indebtedness, or the Senior Agent, as the case may be, have not been paid in full after giving effect to all amounts then or thereafter required to be paid to such holders pursuant to Section 1407 of the Subordinated Note Indenture or any Existing Note. The consolidation of the Company an Obligor with, or the merger of the Company an Obligor with or into, another corporation Person or the liquidation or dissolution of the Company an Obligor following the sale, assignment, conveyance, transfer transfer, lease or lease other disposal of its all or substantially all of such Obligor's properties and or assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight Section 7.3 shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company such Obligor for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation Person which acquires by sale, assignment, conveyance, transfer transfer, lease or lease other disposal of all or substantially all of such Obligor's properties and assets substantially as an entiretyor assets, as the case may be, shall, as a part of such con- solidationconsolidation, merger, sale, assignment, conveyance, transfer transfer, lease or leaseother disposal, comply with the conditions set forth in Article EightSection 7.3.
Appears in 1 contract
Samples: Subordinated Term Loan Credit Agreement (Genmar Holdings Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In Upon any payment or distribution of assets of the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative Guarantor to the Company or to its creditors, as such, or to its assets, or (b) creditors upon any liquidation, dissolution or other dissolution, winding up of the Companyup, whether voluntary or involuntary and whether or not involving insolvency or bankruptcyreorganization, or (c) any assignment for the benefit of creditors creditors, marshaling of assets or any other marshalling of assets and liabilities bankruptcy, insolvency, debt restructuring or similar proceeding in connection with any insolvency or bankruptcy proceeding of the CompanyGuarantor (each such event, if any, herein sometimes referred to as a "PROCEEDING"), then and in any such event:
(1) the holders of Senior Indebtedness Guarantor Liabilities 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 cash or cash equiv- alents of all amounts due or to become due the applicable Guarantor Liability), if any, on or in respect of all Senior Indebtednesssuch Guarantor Liabilities, or provision shall be made for such payment in cash or cash equivalentsequivalents or otherwise in a manner satisfactory to the holders of Guarantor Liabilities, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) retain any payment or distribution of assets any kind or character on account of any Guarantee Payments pursuant to this Guarantee Agreement, whether in cash, property or securities (except for any Guarantee Payments that are due based upon funds deposited pursuant to Section 4.1(a)(ii)(B) of the Company Indenture or funds deposited for the redemption of Series A Debentures for which notice of redemption has been given and the applicable Redemption Date has passed), and to that end the holders of Guarantor Liabilities shall be entitled to receive, for application to the payment thereof any payment or distribution of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason in respect of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated Guarantee Payments in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in Proceeding. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company Guarantor of any kind or char- acter, whether in cash, property or securities, including any such character is made at a time when the respective payment or distribution which may is not permitted to be payable or deliverable by reason made as a result of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, subordination provisions described above and before all Senior Indebtedness is Guarantor Liabilities are paid in full or payment thereof is provided forfor in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Guarantor Liabilities, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Guarantee Trustee or, as the case may be, such Holder, then and in such event such payment or distribution 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 payment of all Senior Indebtedness Guarantor Liabilities remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Indebtedness Guarantor Liabilities in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessGuarantor Liabilities. 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 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 Liabilities to substantially the same extent as the Guarantee Payments are so subordinated as provided in this Article. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation Person or the liquidation or dissolution of the Company Guarantor following the conveyance, transfer sale of all or lease substantially all of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 8 of the Indenture shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Proceeding for the purposes of this Section 1102 Section, if the corporation Person formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation Person which acquires by conveyance, transfer or lease sale such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer or leasesale, comply with the conditions set forth in Article Eight8 of the Indenture.
Appears in 1 contract
Samples: Guarantee Agreement (Pioneer Standard Electronics Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or a bankruptcy case or proceeding, or any reorganization, insolvency, receivership, liquidation, reorganization administration or other similar case or proceeding in connection therewith, relative to the Company a Subordinated Guarantor or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Companya Subordinated Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets and or liabilities of the Companya Subordinated Guarantors, then and in any such event:
(1) the holders of Guarantor Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents in any other form acceptable to the holders of Designated Senior Debt of all Guarantor Senior Indebtedness of all amounts due or to become due on or in respect of all Guarantor Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness before the Holders of the Securities Subordinated Guarantees are entitled to receive any payment or distribution of any kind or character (excluding Permitted Junior Securities) on account of the principal of (or of, premium, if any) , or interest on the SecuritiesSubordinated Guarantees or any other Indenture Obligations in respect of a Subordinated Guarantor; and
(2) any payment or distribution of assets of the Company such Subordinated Guarantor of any kind or character, whether in cash, prop- erty property or securitiessecurities (excluding Permitted Junior Securities), by set-off or otherwise, otherwise to which the Holders or the Trustee would be entitled but for 111 the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Twelve shall be paid by the liquidating trustee or agent or other person making such payment or distributiondistribution whether, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Guarantor Senior Indebted- ness Indebtedness or their the Senior Representative or Representatives or to the their trustee or trustees under any indenture under which any instruments evidencing any of such Designated Senior Indebtedness Debt 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, and other amounts due on or in connection with, the Guarantor Senior Indebtedness held or represented by each to the extent necessary to make payment in full in cash or cash equivalents in any other form acceptable to the holders of Designated Senior Debt of all Guarantor Senior Indebtedness remaining unpaid, unpaid after giving effect to any concurrent payment or distribution to the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 1218, the Trustee or the Holder of any Security Subordinated Guarantees shall have received any such payment or dis- tribution distribution of assets of the Company such Subordinated Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment in respect of principal, premium, if any, and interest on the Subordinated Guarantees or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness Indenture Obligations in respect of the Company being subordinated to the payment of the Securities, a Subordinated Guarantor before all Guarantor Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or on distribution (excluding Permitted Junior Securities) shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent agent, or other Person person making payment or distribution of assets of the Company such Subordinated Guarantor for application to the payment of all Guarantor Senior Indebtedness remaining unpaid to the extent neces- sary necessary to pay all Guarantor Senior Indebtedness in full in cash or cash equivalentsany other form as acceptable to the holders of Designated Senior Debt, after giving effect to any concurrent payment or distribution to or for the holders of Guarantor Senior Indebtedness. The consolidation of the Company such Subordinated Guarantor with, or the merger of the Company into, Subordinated Guarantor with or into another corporation person or the liquidation or dissolution of the Company Subordinated Guarantor following the sale, assignment, conveyance, transfer transfer, lease or lease other disposal of its all or substantially all of the Subordinated Guarantor's properties and or assets substantially as an entirety to another corporation person upon the terms and conditions set forth in Article Eight of this Indenture shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company Subordinated Guarantor for the purposes of this Section 1102 1218 if the corporation person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation person which acquires by sale, assignment, conveyance, transfer transfer, lease or lease other disposal of all or substantially all of such Subordinated Guarantor's properties and assets substantially as an entiretyor assets, as the case may be, shall, as a part of such con- solidationconsolidation, merger, sale, assignment, conveyance, transfer transfer, lease or leaseother disposal, comply with the conditions set forth in Article EightEight of this Indenture.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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 Guarantor or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the CompanyGuarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of or creditors or any other marshalling marshaling of assets and liabilities of the CompanyGuarantor, then and in any such event:
(1) event the holders of Senior Guarantor Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Guarantor Indebtedness, or provision shall be made for such payment in cash money or cash equivalentsmoney's worth, before the Holders of the Securities Guarantees are entitled to receive any payment under the Guarantees on account of principal of (or on, premium, if any) , or interest on the Securities; and
(2) Securities and to that end the holders of Senior Guarantor Indebtedness shall be entitled to receive, for application to the payment thereof, any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason in respect of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated Guarantees in any case or proceeding or similar event described in Subsec- tion (a)such case, (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtednessproceeding, for any such payment or distribution of securities which (i) are unsecureddissolution, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee or agent liquidation or other person making such payment winding up or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in event. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security in respect of the related Guarantee shall have received any such payment or dis- tribution distribution of assets of the Company Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Guarantor Indebtedness is paid in full or payment thereof provided for, 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 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 payment of all Senior Guarantor Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Guarantor Indebtedness in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders holder of Senior Guarantor Indebtedness. For purposes of this Article Eighteen only, the words "cash, property or securities" shall not be deemed to include shares of 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 are subordinated in right of payment to all Senior Guarantor Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Guarantees are so subordinated as provided in this Article Eighteen. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation Person or the liquidation or dissolution of the Company Guarantor following the conveyance, conveyance or transfer of all or lease substantially all of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company Guarantor for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Guarantor is merged or the corporation which acquires by conveyance, conveyance or transfer all or lease substantially all of such properties and assets substantially as an entiretyassets, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth in Article Eight.
Appears in 1 contract
Samples: Indenture (Thermo Electron Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets or securities of the Company any Guarantor of any kind or character, whether in cash, prop- erty property or securities (excluding any payment or distribution of Permitted Junior Securities), upon any dissolu- tion or winding-up or total or partial liquidation or reorganization of such Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency, re- ceivership or other proceedings, all amounts due or to become due with respect to all Guarantor Senior Indebtedness of such Guarantor shall first be paid in full before the Holders of the Securities or the Trustee on behalf of such Holders shall be entitled to receive any payment by such Guarantor of the principal of or interest or Additional Interest, if any, on the Securities pursuant to such Guarantor's Guarantee, or any payment to acquire any of the Securities for cash, property or securities, by setor any distribution with respect to the Securities of any cash, property or securities. Before any payment may be made by, or on behalf of, any Guarantor of the principal of or interest or Additional Interest on the Securities upon any such dissolution or winding-off up or otherwiseliquidation or reorganization, any payment or distribution of assets or se- curities of such Guarantor of any kind or character, whether in cash, property or securities (excluding any payment or distribution of Permitted Junior Secu- rities), to which the Holders of the Securities or the Trustee on their behalf would be entitled entitled, but for the pro- visions subordination provisions of this Article ElevenIndenture, including shall be made by such Guarantor or by any such payment receiver, trustee in bankruptcy, liquidating trustee, agent or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), 99
(b) or (c) of this Section 1102 as part of In the same class of claims as event that, notwithstanding the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee or agent or other person making foregoing provision prohibiting such payment or distribution, any payment or distribution of assets or securi- ties of any Guarantor of any kind or character, whether in cash, property or securities, shall be received by the Trustee or any Holder of Securities at a trustee time when such payment or distribution is prohibited by Section 12.03(a) and before all obligations in bankruptcyrespect of the Guarantor Senior Indebtedness of such Guarantor are paid in full in cash, a receiver or liquidating trustee payment provided for, such payment or otherwisedistribution shall be received and held in trust for the benefit of, directly to and shall be paid over or delivered to, the holders of such Guarantor Senior Indebted- ness (pro rata to such holders on the basis of the respective amounts of such Guarantor Senior Indebtedness held by such holders) or their Representative or Representatives respective repre- sentatives, or to the trustee or trustees under any indenture under pursuant to which any instruments evidencing any of such Guarantor Senior Indebtedness may have been issued, ratably according as their respective interests may appear, for application to the aggregate amounts payment of such Guar- antor Senior Indebtedness remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the until all such Guarantor Senior Indebtedness to the extent necessary to make payment In- debtedness has been paid in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment payment, distribution or distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution provision therefor to or for the holders of such Guarantor Senior Indebtedness. The consolidation of the Company any Guarantor with, or the merger of the Company any Guarantor with or into, another corporation or the liquidation or dissolution of the Company any Guaran- tor following the conveyance, conveyance or transfer or lease of its properties and assets property as an entirety, or substantially as an entirety entirety, to another corporation upon the terms and conditions set forth condi- tions provided in Article Eight Five shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 if the such other corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth stated in Article EightFive.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets of the Company a Guarantor of any kind or character, whether in cash, prop- erty property, or securities, by setto creditors upon any total or partial liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or marshaling of assets of a Guarantor or in a bankruptcy, reorganization, insolvency, receivership or other similar proceedings relating to a Guarantor or its property, whether voluntary or involuntary, all Guaranteed Obligations due or to become due upon all Guarantor Senior Debt shall first be paid in full in cash or Cash Equivalents (including interest after the commencement of any bankruptcy or like proceeding at the rate specified in the applicable Guarantor Senior Debt, whether or not such interest is an allowed claim in any such proceeding), before any payment or distribution of any kind or character is made on account of any Guaranteed Obligations on 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 a Guarantor of any kind or character, whether in cash, property or securities, to which the Holders of the Notes and the Guarantees or the Trustee under this Indenture would be entitled but entitled, except for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)provisions hereof, shall be paid by the such Guarantor 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 Holders or otherwiseby the Trustee under this Indenture if received by them, directly to the holders of Guarantor Senior Indebted- ness Debt (PRO RATA to such holders on the basis of the respective amounts of 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 Guarantor Senior Debt remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the until all such Guarantor Senior Indebtedness to the extent necessary to make payment Debt has been paid in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, Cash Equivalents after giving effect to any concurrent payment payment, distribution or distribution provision therefore to or for the holders of such Guarantor Senior Indebtedness; andDebt.
(3b) To the extent any payment of 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 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 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. It is further agreed that any diminution (whether pursuant to court decree or otherwise, including without limitation for any of the reasons described in the preceding paragraph) of such Guarantor's obligation to make any distribution or payment pursuant to any Guarantor Senior Debt, except to the extent such diminution occurs by reason of the repayment (which has not been disgorged or returned) of such Guarantor Senior Debt in cash or Cash Equivalents, shall have no force or effect for purposes of the subordination provisions contained in this Article XII, with any turnover of payments as otherwise calculated pursuant to this Article XII to be made as if no such diminution has occurred.
(c) In the event that, notwithstanding the foregoing provisions of this Sectionforegoing, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company any Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including shall be received by the Trustee, any Holder when such payment or distribution which may be payable or deliverable is prohibited by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the SecuritiesSection 12.03(a), before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Guarantor 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 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 payment of all Guarantor Senior Indebtedness Debt remaining unpaid to the extent neces- sary to pay until all such Guarantor Senior Indebtedness Debt has been paid in full in cash or cash equivalentsCash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefore to or for the holders of such Guarantor Senior Indebtedness. Debt.
(d) The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation or the liquidation or dissolution of the Company a Guarantor following the conveyance, conveyance or transfer of all or lease substantially all of its properties and assets substantially as an entirety assets, to another corporation upon the terms and conditions set forth provided in Article Eight Five hereof and as long as permitted under the terms of the Guarantor Senior Debt shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 if the such other corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyanceconveyance or transfer, transfer or lease, comply assume the Guarantor's obligations hereunder in accordance with the conditions set forth in Article EightFive hereof.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In case of the event pendency of (a) any insolvency or bankruptcy case or proceeding, or any receivership, insolvency, liquidation, reorganization bankruptcy, reorganization, arrangement, adjustment, composition or other similar case or judicial proceeding in connection therewith, relative to the Company or (each such event, if any, herein sometimes referred to its creditors, as such, or to its assets, 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 marshalling of assets and liabilities of the Companya "Proceeding"), then and in any such event:
(1) the holders of Senior Indebtedness Debt shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect Allocable Amounts of all such Senior IndebtednessDebt, or provision shall be made for such payment in cash or cash equivalentsequivalents or otherwise in a manner satisfactory to the holders of Senior Debt, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) retain any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, securities (including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness Debt of the Company being (including any series of the Securities) subordinated to the payment of the Securi- ties (exceptSecurities, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution being hereinafter referred to as a "Junior Subordinated Payment"), on account of securities which principal of (ior premium, if any) are unsecured, or interest (iiincluding any Additional Interest) have an average life and final maturity no shorter than on the average life and final maturity Securities or on account of the purchase or other acquisition of Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee Company or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly any Subsidiary and to that end the holders of Senior Indebted- ness or their Representative or Representatives or Debt shall be entitled to receive, for application to the trustee payment thereof, any payment or trustees under distribution of any indenture under kind or character, whether in cash, property or securities, including any Junior Subordinated Payment, which may be payable or deliverable in respect of the Securities in any instruments evidencing such Proceeding; provided, however, that holders of Senior Debt shall not be entitled to receive payment of any such amounts to the extent that such holders woud be required by the subordination provisions of such Senior Indebtedness may have been issued, ratably according Debt to pay such amounts over to the aggregate amounts remaining unpaid obligees on account trade accounts payable or other liabilities arising in the ordinary course of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in Company's business. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the SecuritiesJunior Subordinated Payment, before all Allocable Amounts of all Senior Indebtedness is Debt are paid in full or payment thereof is provided forfor in cash 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 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 for application to the payment of all Allocable Amounts of all Senior Indebtedness Debt remaining unpaid unpaid, to the extent neces- sary necessary to pay all Allocable Amounts of all Senior Indebtedness Debt in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt; provided, however, that holders of Senior Debt shall not be entitled to receive payment of any such amounts to the extent that such holders would be required by the subordination provisions of such Senior Debt to pay such amounts over to the obligees on trade accounts payable or other liabilities arising in the ordinary course of the Company's business. 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 corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer sale of all or lease substantially all of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight VIII shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company Proceeding for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Company is merged or the corporation Person which acquires by conveyance, transfer or lease sale such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer or lease, sale comply with the conditions set forth in Article EightVIII.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders The Holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or cash equiv- alents Cash Equivalents of all amounts obligations due or to become due on or in respect of all such Senior Indebtedness (including interest after the commencement of any bankruptcy, reorganization, insolvency, receivership or similar proceeding whether or not allowed or allowable as a claim in any such preceding at the rate specified in the applicable Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, ) before the Holders of the Securities are will be entitled to receive any direct or indirect payment on account in respect of principal any Indenture Obligations, in the event of any distribution to creditors of the Company or a Guarantor:
(1) in a liquidation or premium, if any) dissolution of the Company or interest on the Securities; anda Guarantor:
(2) in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or a Guarantor or its property;
(3) in an assignment for the benefit of creditors; or
(4) in any marshalling of the Company's or a Guarantor's assets and liabilities.
(b) Any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securities, by set-off which may be payable or otherwisedeliverable in respect of the Indenture Obligations in any case, proceeding, dissolution, liquidation or other winding up or event of the type referred to which the Holders or the Trustee would be entitled but for the pro- visions in clauses (1) through (4) in paragraph (a) of this Article ElevenSection 1302, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness Indebtedness of the Company being or a Guarantor which is subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)Indenture Obligations, shall be paid by the liquidating trustee Company or agent Guarantor, as applicable, or other person making such payment or distribution, whether a by the trustee in bankruptcy, debtor-in-possession, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company or a receiver or liquidating trustee or otherwise, Guarantor directly to the holders of the Senior Indebted- ness Indebtedness or their Representative representative or Representatives 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary necessary to pay all Senior Indebtedness in full in cash or cash equivalents, Cash Equivalents after giving effect to any concurrent payment or distribution to or for the benefit of the holders of the Senior Indebtedness, except that (1) in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or a Guarantor or its property, holders of the Securities may receive any payment or distribution authorized by an unstayed, final, nonappealable order or decree stating that effect is being given to the subordination of the Indenture Obligations to the Senior Indebtedness and made by a court of competent jurisdiction in a reorganization proceeding under any applicable bankruptcy law of securities ("Permitted Junior Securities") which, if debt securities, are subordinated to at least the same extent as the Indenture Obligations are to (x) the Senior Indebtedness or (y) any securities issued in exchange for the Senior Indebtedness; and (2) holders of the Securities may recover payments made from the trust described under provisions of Section 402 or 403 of this Indenture.
(c) Notwithstanding the foregoing provisions of this Section 1302, in the event that, the Trustee or the Holder of any Security shall have received any payment or distribution of assets of the Company or any Guarantor of any kind or character, whether in cash, property or securities (excluding Permitted Junior Securities or payments from the trust described under Section 402 or 403 of this Indenture), in respect of the Indenture Obligations when such payment or distribution is prohibited by the subordination provisions of this Article Thirteen, then the Trustee or the Holders, as the case may be, shall deliver the amounts to the holders of the Senior Indebtedness of the Company or their proper representative. Upon the proper written request of the holders of the Senior Indebtedness of the Company, the Trustee or the Holders, as the case may be, shall deliver the amounts to the holders of Senior IndebtednessIndebtedness of the Company or their proper representative. The consolidation of the Company with, or the merger of the Company with or into, another corporation Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer transfer, lease or lease other disposal of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company or any Guarantor for the purposes of this Section 1102 1302 if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation Person which acquires by sale, assignment, conveyance, transfer transfer, lease or lease other disposal of such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, sale, assignment, conveyance, transfer transfer, lease or leaseother disposal, comply with the conditions set forth in Article Eight.
Appears in 1 contract
Samples: Exhibit (Brooks Pharmacy, Inc.)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding 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 marshalling marshaling of assets and or liabilities of the CompanyCompany (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 under Article VIII), then and in any such event:
(1i) the holders of Senior Indebtedness shall Debt will be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect Cash Equivalents of all Senior IndebtednessDebt (including interest after the commencement of any bankruptcy, insolvency or similar proceeding at the rate specified in the applicable Senior Debt, whether or not such interest is an allowed claim in any such proceeding), or provision shall be made for such payment in cash or cash equivalentsfull, before the Holders of the Securities are will be entitled to receive any payment or distribution of any kind or character (other than any payment made pursuant to Article IV from monies or U.S. Government Obligations previously deposited with the Trustee) on account of principal of (of, or premium, if any) , or interest on the Securities; and
(2ii) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securitiessecurities (other than payments made pursuant to Article IV from monies or U.S. Government Obligations previously deposited with the Trustee), by set-off or otherwise, to which the Holders of the Securities or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Indenture shall be paid by the 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 Indebted- ness Debt or their Representative 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, representatives ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness Debt to the extent necessary to make payment in full in cash or cash equivalents of all Senior Indebtedness Debt remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt. The consolidation of the Company with, or the merger of the Company into, another corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight VIII shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Company is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightVIII.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (ai) 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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets or securities of the Company any Guarantor of any kind or character, whether in cash, prop- erty property or securities (excluding any payment or distribution of Permitted Junior Securities), upon any dissolution or winding-up or total liquidation or reorganization of such Guarantor or assignment for the benefit of creditors of such Guarantor or similar proceeding, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all Guarantor Senior Indebtedness of such Guarantor shall first be paid in full in cash before the Holders of the Notes shall be entitled to receive any payment by or on behalf of such Guarantor of the principal of or interest on the Notes pursuant to such Guarantor's Guarantee, or any payment by or on behalf of such Guarantor to acquire any of the Notes for cash, property or securities, by setor any distribution with respect to the Notes of any cash, property or securities (excluding any payment or distribution of Permitted Junior Securities). Before any such payment or distribution may be made by, or on behalf of, any Guarantor in respect of the principal of, premium, if any, or interest on the Notes upon any such dissolution or winding-off up or otherwiseliquidation or reorganization of the Guarantor or assignment for the benefit of creditors of such Guarantor or similar proceeding, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, any payment or distribution of assets or securities of such Guarantor of any kind or character, whether in cash, property or securities (excluding any payment or distribution of Permitted Junior Securities), to which the Holders or of the Trustee Notes would be entitled entitled, but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason subordination provisions of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)Notes, shall be paid made by the liquidating such Guarantor or by any receiver, trustee or in bankruptcy, liquidation trustee, 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 the Guarantor Senior Indebted- ness Indebtedness of such Guarantor (pro rata to such holders on the basis of the respective amounts of such Guarantor Senior Indebtedness held by such holders) or their Representative or Representatives representatives or to the trustee or trustees or agent or agents under any agreement or indenture under pursuant to which any instruments evidencing any of such Guarantor Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal ofas their respective interests may appear, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment pay all such Guarantor Senior Indebtedness in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any prior or concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Guarantor Senior Indebtedness; and.
(3ii) in In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any provision prohibiting such payment or dis- tribution distribution, any payment or distribution of assets or securities of the Company any Guarantor of any kind or char- actercharacter, whether in cash, property or securitiessecurities (excluding any payment or distribution of Permitted Junior Securities), including shall be made directly to any Holder of Notes at a time when such payment or distribution which may be payable or deliverable is prohibited by reason Section 20(c)(i) and before all obligations in respect of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Guarantor Senior Indebtedness is of such Guarantor are paid in full or payment thereof provided forin cash, then and in such event such payment or distribution shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith by the Company or the Holder to, the holders of such Guarantor Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of such 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 payment or distribution agents under any indenture pursuant to which any of assets of the Company such Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all such Guarantor Senior Indebtedness remaining unpaid to the extent neces- sary to pay until all such Guarantor Senior Indebtedness has been paid in 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 Guarantor Senior Indebtedness. The consolidation of the Company any Guarantor with, or the merger of the Company any Guarantor with or into, another corporation or the liquidation or dissolution of the Company any Guarantor following the conveyance, conveyance or transfer or lease of its properties and assets property as an entirety, or substantially as an entirety entirety, to another corporation upon the terms and conditions set forth provided in Article Eight Sections 17 and 18 shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 20(c) if the such other corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth stated in Article EightSections 17 and 18.
Appears in 1 contract
Samples: Modification Agreement (St John Knits International Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In Upon any payment or distribution of assets of the event of (a) Borrower to creditors upon any insolvency or bankruptcy case or proceedingdissolution, or any receivershipwinding up, liquidation, reorganization arrangement, reorganization, adjustment, protection, relief or composition of the Borrower or its debts, whether voluntary or involuntary, in any bankruptcy, insolvency, arrangement, reorganization, receivership, relief or other similar case or proceeding in connection therewith, relative to the Company under any federal or to its creditors, as such, state bankruptcy or to its assets, similar law 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 upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the CompanyBorrower, then and in any such event:
each case whether total or partial (1) each, a "Distribution Event"), the holders of Senior Indebtedness shall Debt will first be entitled to receive payment paid, in full in cash or cash equiv- alents of full, all amounts due or to become due on or in respect of all the Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Debt before the Holders of the Securities Lenders are entitled to receive any payment on account the Obligations under the Credit Documents (other than equity or subordinated securities of principal the Borrower provided for in a plan of reorganization or readjustment that, in the case of subordinated securities, are subordinated in right of payment to the Senior Debt to at least the same extent as the Obligations under the Credit Documents are so subordinated (or premium"Permitted Securities"). In the event that, if any) or interest on notwithstanding the Securities; and
(2) foregoing, any Lender receives any payment or distribution of assets of the Company Borrower of any kind or charactercharacter (other than Permitted Securities) in connection with any such Distribution Event before all of the Senior Debt is paid in full, whether in cash, prop- erty or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any then each such payment or distribution which may will be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated held in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life trust and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be paid over or delivered forthwith by each such Lender to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company Senior Agent for application to the payment of all the Senior Indebtedness Debt remaining unpaid unpaid, to the extent neces- sary necessary to pay all the Senior Indebtedness Debt in full in cash or cash equivalents, after giving effect to full. Upon any concurrent payment or distribution referred to in this Section 12.02, the Administrative Agent and the Lenders shall be entitled to rely upon any order or for decree of a court of competent jurisdiction in which such Distribution Event proceedings are pending; provided, that such order or decree expressly gives effect to the holders of Senior Indebtedness. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes provisions of this Section 1102 if the corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightXII.
Appears in 1 contract
Samples: Senior Subordinated Credit Agreement (Insignia Financial Group Inc /De/)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding 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 marshalling of assets and or liabilities of the CompanyCompany (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 under Article Eight), then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on equivalents or in respect any other form acceptable to each holder of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalentsfull, before the Holders of the Securities are will be entitled to receive any payment or distribution of any kind or character (other than any payment or distribution in the form of equity securities or subordinated securities of the Company or any successor obligor that, 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 Notes are so subordinated as provided in this Indenture (such equity securities or subordinated securities hereinafter being "Permitted Junior Securities") and any payment made pursuant to Article Fourteen from monies or U.S. Government Obligations previously deposited with the Trustee) on account of principal of (or premium, if any) or interest on the SecuritiesNotes or on account of the purchase or redemption or other acquisition of Notes; and
(2) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securitiessecurities (other than a payment or distribution in the form of Permitted Junior Securities and any payment made pursuant to Article Fourteen from monies or U.S. Government Obligations previously deposited with the Trustee), by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Indenture shall be paid by the 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 Indebted- ness 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, representative ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Company is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article Eight.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets or securities of the Company any Guarantor of any kind or character, whether in cash, prop- erty property or securities (excluding any payment or distribution of Permitted Junior Securities), upon any dissolution or winding-up or liquidation or reorganization of such Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all Guarantor Senior Indebtedness of such Guarantor will first be paid in full before the Holders of the Securities or the Trustee on behalf of such Holders will be entitled to receive any payment by such Guarantor of the principal of or interest on the Securities pursuant to such Guarantor's Guarantee, or any payment to acquire any of the Securities for cash, property or securities, by setor any distribution with respect to the Securities of any cash, property or securities (excluding any payment or distribution of Permitted Junior Securities). Before any payment may be made by, or on behalf of, any Guarantor of the principal of or interest on the Securities upon any such dissolution or winding-off up or otherwiseliquidation or reorganization, any payment or distribution of assets or securities of such Guarantor of any kind or character, whether in cash, property or securities (excluding any payment or distribution of Permitted Junior Securities), to which the Holders of the Securities or the Trustee on their behalf would be entitled entitled, but for the pro- visions subordination provisions of this Article ElevenIndenture, including will be made by such Guarantor or by any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (exceptreceiver, so long as the effect of this parenthetical clause is not to cause the Securities to be treated trustee in any case or proceeding or similar event described in Subsec- tion (a)bankruptcy, (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtednessliquidating trustee, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 the Guarantor Senior Indebted- ness Indebtedness of such Guarantor (pro rata to such holders on the basis of the respective amounts of such Guarantor Senior Indebtedness held by such holders) or their Representative or Representatives representatives or to the trustee or trustees or agent or agents under any agreement or indenture under pursuant to which any instruments evidencing any of such Guarantor Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal ofas their respective interests may appear, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment pay all such Guarantor Senior Indebtedness in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any prior or concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Guarantor Senior Indebtedness; and.
(3b) in In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any provision prohibiting such payment or dis- tribution distribution, any payment or distribution of assets or securities of the Company any Guarantor of any kind or char- actercharacter, whether in cash, property or securitiessecurities (excluding any payment or distribution of Permitted Junior Securities), including shall be received by the Trustee or any Holder of Securities at a time when such payment or distribution which may be payable or deliverable is prohibited by reason Section 13.03(a) and before all obligations in respect of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Guarantor Senior Indebtedness is of such Guarantor are paid in full in cash, or payment thereof provided for, then and in such event such payment or distribution 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 Indebtedness (pro rata to such holders on the basis of the respective amounts of such 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 payment or distribution agents under any indenture pursuant to which any of assets of the Company such Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all such Guarantor Senior Indebtedness remaining unpaid to the extent neces- sary to pay until all such Guarantor Senior Indebtedness has been paid in 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 Guarantor Senior Indebtedness. The consolidation of the Company any Guarantor with, or the merger of the Company any Guarantor with or into, another corporation or the liquidation or dissolution of the Company any Guarantor following the conveyance, conveyance or transfer or lease of its properties and assets property as an entirety, or substantially as an entirety entirety, to another corporation upon the terms and conditions set forth provided in Article Eight Five (or any replacement provisions as contemplated by Article Five) shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 13.03 if the such other corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth stated in Article EightFive (or any replacement provisions as contemplated by Article Five).
Appears in 1 contract
Samples: Indenture (HPH Homebuilders 2000 Lp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding 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 marshalling of assets and or liabilities of the CompanyCompany (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 under Article Five), then and in any such event:
(1) the holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect equivalents of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalentsfull, before the Holders of the Securities are will be entitled to receive any payment or distribution of any kind or character (other than any payment or distribution in the form of equity securities or subordinated securities of the Company or any successor obligor that, 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 Indenture (such equity securities or subordinated securities hereinafter being "Permitted Junior Securities") and any payment made pursuant to Article Eight from monies or U.S. Government Obligations previously deposited with the Trustee) on account of principal of (of, or premium, if any) , or interest on the Securities; and;
(2) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securitiessecurities (other than a payment or distribution in the form of Permitted Junior Securities and any payments made pursuant to Article Eight from monies or U.S. Government Obligations previously deposited with the Trustee), by set-off or otherwise, to which the Holders of the Securities or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Indenture shall be paid by the 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 Indebted- ness Indebtedness or their Representative 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, representatives ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight Five shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany Company is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightFive.
Appears in 1 contract
Samples: Indenture (Centennial Cellular Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In Upon any distribution to creditors of the event of (a) any insolvency or bankruptcy case or proceeding, Company or any receivership, Guarantor upon any total or partial liquidation, reorganization dissolution or other winding up of the Company or such Guarantor or in a bankruptcy, reorganization, insolvency, receivership or similar case or proceeding in connection therewith, relative relating to the Company or to such Guarantor or its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Companyproperty, whether voluntary or involuntary and whether or not involving insolvency or bankruptcyinvoluntary, or (c) any an assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Company, then 's or such Guarantor's assets and in any such event:liabilities,
(1a) the holders of Senior Indebtedness shall of the Company or such Guarantor will be entitled to receive payment in full in cash cash, or cash equiv- alents at the option of the holders of such Senior Indebtedness, in Temporary Cash Investments, of all amounts Obligations due or to become due on or in respect of all such Senior Indebtedness (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, ) before the Holders of the Securities are will be entitled to receive any payment on account of principal of (any kind or premium, if any) or interest on character with respect to the SecuritiesNotes; and
(2b) any payment until all Obligations with respect to such Senior Indebtedness are paid in full in cash, or distribution of assets at the option of the Company holders of such Senior Indebtedness, in Temporary Cash Investments, any distribution of any kind or character, whether in cash, prop- erty or securities, by set-off or otherwise, character to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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 made to the holders of such Senior Indebtedness; and
Indebtedness (3) in except that Holders may receive Permitted Junior Securities and payments made from the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtednesstrust described under Article 8). The consolidation of the Company with, or the merger of the Company into, another corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight 5 shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1102 10.02 if the corporation Person formed by such consolidation or into which the Com- pany Company is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article Eight5.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, arrangement, 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 voluntary or involuntary, or (b) any liquidation, dissolution or other winding 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 marshalling of assets and or liabilities of the CompanyCompany (except in connection with the merger or consolidation of the Company or its liquidation or dissolution following the transfer of substantially all of its assets, upon the terms and conditions permitted under the circumstances described in Section 5.1), then and in any such event:
(1) the holders of Senior Indebtedness shall and Guarantor Senior Indebtedness, as the case may be, will be entitled to receive payment in full in cash or cash equiv- alents and satisfaction of all amounts Obligations due or to become due on or in respect of all Senior Indebtedness and Guarantor Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalentsas the case may be, before the Holders of the Securities are entitled to receive or retain any payment or distribution of any kind or character (other than a payment or distribution made out of the Defeasance Trust) on account of principal of (or of, premium, if any) , or interest on the Securities; and
(2) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this SectionSection 10.2, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company of any kind or char- acterkind, whether in cash, property or securities, including any including, without limitation, by way of set-off or otherwise, in respect of principal of, premium, if any, and interest on the Securities before all Obligations in respect of Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be, are paid and satisfied in full in cash, then such payment or distribution which may be payable or deliverable by reason (other than payment made out of the payment Defeasance Trust) will be held by the recipient in trust for the benefit of any other indebt- edness holders of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided forand Guarantor Senior In- debtedness, then as the case may be, and in such event such payment or distribution shall will be immediately 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 for an application to the payment of all Obligations with respect to Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be, remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalentsunpaid, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness and Guarantor Senior Indebtedness, as the case may be. The consolidation of the Company with, or the merger of the Company with or into, another corporation Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight V hereof shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company for the purposes of this Section 1102 Article if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article EightV hereof.
Appears in 1 contract
Samples: Indenture (Oci N Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets or securities of either of the Company Issuers of any kind or character, whether in cash, prop- erty property or securities (excluding any payment or distribution of Permitted Junior Securities and payments from the Interest Escrow Account), upon any dissolution or other winding-up or liquidation, rearrangement or reorganization of either of the Issuers, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings or any general assignment for the benefit of creditors or other marshalling of assets or liabilities of either Issuer (except in connection with the merger or consolidation of either Issuer or liquidation or dissolution following the transfer of substantially all of its assets, upon the terms and conditions permitted under the circumstances described in Section 5.01), all Senior Indebtedness shall first be paid and satisfied in full in cash before the Holders of the Securities or the Trustee on behalf of such Holders shall be entitled to receive any payment by the Issuers of the principal of, premium, if any, or interest on the Securities (other than payments from the Interest Escrow Account), or any payment by the Issuers to acquire any of the Securities for cash, property or securities, or any distribution by the Issuers with respect to the Securities of any cash, property or securities (excluding any payment or distribution of Permitted Junior Securities and excluding payments from the Interest Escrow Account). Before any payment may be made by, or on behalf of, the Issuers of the principal of, premium, if any, or interest on the Securities (other than payments from the Interest Escrow Account) upon any such dissolution or winding-up or liquidation, rearrangement or reorganization, any payment or distribution of assets or securities of the Issuers of any kind or character, whether in cash, property or securities (excluding any payment or distribution of Permitted Junior Securities and excluding payments from the Interest Escrow Account) to which the Holders of the Securities or the Trustee on their behalf would be entitled, but for the subordination provisions of this Indenture, shall be made by the Issuers or by any receiver, trustee in bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, directly to the holders of the Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their representatives or to the trustee or trustees or agent or agents under any agreement or indenture pursuant to which any of such Senior Indebtedness might have been issued, as their respective interests may appear, to the extent necessary to pay all such Senior Indebtedness in full in cash after giving effect to any prior or concurrent payment, distribution or provision therefor to or for the holders of such Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision prohibiting such payment or distribution, the Trustee or any Holder of Securities receives any payment or distribution of assets of either of the Issuers of any kind, whether in cash, property or securities (excluding any payment or distribution of Permitted Junior Securities and excluding payments from the Interest Escrow Account), including, without limitation, by way of set-off or otherwise, to which in respect of the Holders or the Trustee would be entitled but for the pro- visions of this Article Eleven, including any Securities at a time when such payment or distribution which may be payable or deliverable is prohibited by reason of the payment of any other indebtedness Section 8.03 and before all Senior Indebtedness of the Company being subordinated to the payment of the Securi- ties (exceptis paid and satisfied in full in cash, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any then such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid held by the liquidating trustee or agent or other person making such payment or distribution, whether a trustee recipient in bankruptcy, a receiver or liquidating trustee or otherwise, directly to trust for the benefit of holders of Senior Indebted- ness Indebtedness and will be immediately paid over or their Representative or Representatives or delivered to the trustee in bankruptcy or trustees under any indenture under which any instruments evidencing any such other Person making payment or distribution of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account assets of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness Company 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 current payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event thatdistribution, notwithstanding the foregoing provisions of this Sectionor provision therefor, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 a corporation or the liquidation or dissolution of the Company following the conveyance, conveyance or transfer or lease of its properties and assets property as an entirety, or substantially as an entirety entirety, to another a corporation upon the terms and conditions set forth provided in Article Eight Five shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 8.03 if the such corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth stated in Article EightFive.
Appears in 1 contract
Samples: Indenture (Digital Television Services of Kansas LLC)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to No payment by the Company or to its creditors, as such, or to its assets, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
Securities of any series (2or any Coupons appertaining thereto) shall be made if any default or event of default with respect to any Superior 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 Superior 1ndebtedness (or the representative or trustee of such holders) or the Trustee shall have received written notice thereof from the Company. In the event that any Securities or any series (or any Coupons appertaining thereto) are 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 Five, or upon any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securities, by set-off to creditors upon any dissolution or otherwisewinding 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 which the become due upon all Superior Indebtedness shall first be paid in full before any Holders of Securities, or the Trustee would Trustee, shall be entitled but to receive or retain any assets (other than shares of stock of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for the pro- visions by a plan of this Article Eleven-127- 138 reorganization or readjustment, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (exceptwhich is subordinated, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least to the same extent as the SecuritiesSecurities of any series (or any Coupons appertaining thereto), to the payment of all Senior Superior Indebtedness then which may at the time be outstanding, provided that the rights of the holders of the Superior Indebtedness are not altered by such reorganization or readjustment) so paid or distributed in respect of the Securities of any series (or any Coupons appertaining thereto) (for principal or interest); and upon such dissolution or winding up or liquidation or reorganization any payment or distribution of 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 Securities of any series (or any Coupons appertaining thereto), to the payment of all Superior Indebtedness which may at the time be outstanding, provided that the rights of the holders of the Superior Indebtedness are not altered by such reorganization or readjustment), to which any Holder of Securities or the Trustee would be entitled, except for the provisions of this Section, shall be paid by the Company 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 any Holder of Securities or otherwisethe Trustee if received by them or it, directly to the holders of Senior Indebted- ness Superior Indebtedness (pro rata to each such holder on the basis of the respective amounts of Superior Indebtedness held by such holder) or their Representative representatives or Representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issuedtrustees, ratably according to the aggregate amounts remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness 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
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Superior Indebtedness in full in cash or cash equivalentsfull, after giving effect to any concurrent payment or distribution to or for the holders of Senior Superior Indebtedness, before any payment or distribution is made to the Holders of Securities or to the Trustee. No holder of Superior Indebtedness shall be prejudiced in his right to enforce subordination of the Securities of any series (or any Coupons appertaining Without notice to or the consent of any Holder of Securities or the Trustee the holders of Superior 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 Superior Indebtedness, or amend or supplement in any manner any instrument evidencing the Superior Indebtedness, any agreement pursuant to which the Superior Indebtedness was issued or incurred or any instrument securing or relating to the Superior Indebtedness; release any person liable in any manner for the payment or collection of the Superior Indebtedness; exercise or refrain from exercising any rights in respect of the Superior Indebtedness against the Company or any other person; apply any moneys or other property paid by any person or released in any manner to the Superior Indebtedness; or accept or release any security for the Superior Indebtedness. The consolidation Subject to the payment in full of all Superior Indebtedness, the Holders of Securities shall be subrogated (equally and ratably with the holders of all indebtedness of the Company withwhich, by its express terms, ranks on a parity with the Securities of any series (or any Coupons appertaining thereto) and is entitled to like rights of subrogation) to the merger rights of the holders of Superior Indebtedness to receive payments or distribution assets of the Company intoapplicable to the Superior Indebtedness until the Securities of any series (or any Coupons appertaining thereto) shall be paid in full. For purposes of such subrogation, another corporation no payments or distributions on the Superior Indebtedness pursuant to this Section shall, as between the Company, its creditors other than the holders of Superior Indebtedness, and the holders of the Securities of any series (or any Coupons appertaining thereto), be deemed to be a payment by the Company to or on account of the Superior Indebtedness, and no payments or distributions to the -129- 140 Trustee or the liquidation Holders of the Securities of assets by virtue of the subrogation herein provided for shall, as between the Company, its creditors other than the holders of Superior Indebtedness, and the Holders of the Securities, be deemed to be a payment to or dissolution on account of the Securities of any series (or any Coupons appertaining thereto). The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of Superior Indebtedness, on the other hand, and nothing contained in this Article or elsewhere in this Indenture or in the Securities of any series (or any Coupons appertaining thereto) is intended to or shall impair the obligation of the Company, which is unconditional and absolute, to pay the principal of and interest on the Securities of any series (or any Coupons appertaining thereto) and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of the Securities and creditors of the Company following other than the conveyanceholders of Superior Indebtedness, transfer nor shall anything herein or lease therein prevent the Trustee or the Holder of its properties and assets substantially as an entirety any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to another corporation upon the terms and conditions set forth rights, if any, under this Article, of the holders of Superior Indebtedness in Article Eight shall not be deemed a dissolutionrespect of cash, winding up, liquidation, reorganization, assignment for the benefit of creditors property or marshalling of assets and liabilities securities of the Company otherwise payable or delivered to the Trustee or any Holder of Securities upon the exercise of any such remedy. Upon any payment or distribution pursuant to this Section, the Trustee and any Holder of Securities shall be entitled to rely upon any order or decree of a court of competent jurisdiction in which any proceedings of the nature referred to in this Section are pending, and the Trustee, subject to the provisions of Section 701, and any Holder of Securities shall be entitled to rely upon a certificate of the liquidating trustee or agent or other person making such payment or distribution delivered to the Trustee or to any Holder of Securities, for the purposes purpose of ascertaining the persons entitled to participate in such -130- 141 payment or distribution, the holders of the Superior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed therein and all other facts pertinent thereto or to this Section. In the event that the Trustee determines, in good faith, that evidence is required with respect to the right of any person as a holder of Superior Indebtedness to participate in any payment or distribution pursuant to this Section, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Superior Indebtedness held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, and as to other Facts pertinent to the rights of such person under this Section, and if such evidence is not furnished, the Trustee may defer any payment to such person pending judicial determination as to the right of such person to receive such payment. Nothing contained in this Article or elsewhere in this Indenture, or in any of the Securities of any series (or any Coupons appertaining thereto), shall prevent (a) the application by the Trustee or any Paying Agent of any moneys deposited with it hereunder to the payment of or on account of the principal of or interest on Securities of any series (or any Coupons appertaining thereto) if, at the time of such deposit (provided that the time of such deposit was not more than 10 days prior to the time of such payment), such payment would not have been prohibited by the foregoing provisions of this Section 1102 if or (b) any payment by the corporation formed by such consolidation or into which the Com- pany is merged Company or the corporation which acquires by conveyance, transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as Trustee to any Holder of Securities of moneys in connection with a part redemption of Securities of any series if (i) notice of such con- solidation, merger, conveyance, transfer or lease, comply with redemption has been given to the conditions set forth Holders of the Securities to be redeemed pursuant to Article Eleven prior to the receipt by the Trustee of the written notice referred to in Article EightSection 1404 and (ii) such notice of redemption is given not earlier than 60 days before the date fixed for redemption.
Appears in 1 contract
Samples: Indenture (Ubs Americas Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) any payment or distribution of assets of the Company of or any kind or characterSubsidiary Guarantor to creditors upon any liquidation, whether in cashdissolution, prop- erty or securitieswinding-up, by set-off or otherwisereorganization, to which the Holders or the Trustee would be entitled but assignment for the pro- visions benefit of this Article Elevencreditors, including marshalling of assets or any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (exceptbankruptcy, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding insolvency or similar event described in Subsec- tion proceedings (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any each such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by 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, directly to the holders of Senior Indebted- ness 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 premiumevent, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness is herein sometimes referred 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
(3as a "Proceeding") in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution of assets of the Company of or any kind or char- acter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of Subsidiary Guarantor (the Company or such Subsidiary Guarantor being subordinated to the payment of "Affected Obligor") (except in connection with the Securities, before all Senior Indebtedness is paid in full consolidation or payment thereof provided for, then and in such event such payment or distribution 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 for application to the payment of all Senior Indebtedness remaining unpaid to the extent neces- sary to pay all Senior Indebtedness in full in cash or cash equivalents, 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 corporation or the its liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety entirety, in accordance with Article VIII) then (i) if the Affected Obligor is the Company, the holders of Senior Debt shall first be entitled to another corporation upon receive payment in full, in cash or Cash Equivalents, of all amounts due or to become due on or in respect of such Senior Debt (including interest accruing after the terms commencement of any such Proceeding at the rate specified therein whether or not such interest is an allowed claim in such Proceeding) before the Holders of the Securities are entitled to receive any payment of principal of and conditions set forth in Article Eight shall not be deemed a dissolutionpremium, winding upif any, liquidation, reorganization, assignment for and interest on the benefit Securities or on account of creditors the purchase or marshalling redemption or other acquisition of assets and liabilities Securities by the Company or any Subsidiary of the Company for the purposes of this Section 1102 and (ii) if the corporation formed by Affected Obligor is a Subsidiary Guarantor, the holders of Guarantor Senior Debt of such consolidation Subsidiary Guarantor shall first be entitled to receive payment in full, in cash or into which cash equivalents, of all amounts due or to become due on or in respect of such Guarantor Senior Debt (including interest accruing after the Com- pany commencement of any such Proceeding at the rate specified therein whether or not such interest is merged an allowed claim in such Proceeding) before the Holders of the Securities are entitled to receive any payment or distribution of any kind with respect to the corporation which acquires by conveyanceSubsidiary Guarantee of such Subsidiary Guarantor (any payment on or purchase, transfer redemption or lease acquisition of the Securities, referred to in clause (i), and any payment on a Subsidiary Guarantee, referred to in clause (ii), being, individually and collectively, a "Securities Payment"), and, to that end, if the Affected Obligor is the Company, the holders of Senior Debt and, if the Affected Obligor is a Subsidiary Guarantor, the holders of Guarantor Senior Debt of such properties and assets substantially as an entiretySubsidiary Guarantor (such Senior Debt or Guarantor Senior Debt, as the case may be, shall, as a part being "Affected Obligor Senior Debt" of such con- solidationAffected Obligor) shall be entitled to receive, mergerfor application to the payment thereof, conveyanceany payment or distribution of any kind or character, transfer whether in cash, property or leasesecurities which may be payable or deliverable in respect of the Securities in any such Proceeding. In the event that, comply with notwithstanding the conditions set forth foregoing provisions of this Section 1402, the Trustee or the Holder of any Security shall have received any payment or distribution of assets of an Affected Obligor of any kind or character, whether in Article Eight.cash, property or securities, before all Affected Obligor Senior Debt is paid in full,
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative relating to the Company any Note Guarantor or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding winding-up of the Companysuch Note Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcyinvoluntary, or (c) any assignment for the benefit of creditors or any other marshalling of assets and or liabilities of the Companysuch Note Guarantor, then and in any such event:
: (1) the holders of all Guarantor Senior Indebtedness of such Note Guarantor shall be entitled to receive payment in full in cash or cash equiv- alents equivalents, or provision acceptable to the requisite holders of Guarantor Senior Indebtedness of such Note Guarantor made for such payment, of all amounts due or to become due on or in respect of all such Guarantor Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness before the Holders of the Securities are entitled to receive any payment or distribution, whether in cash, property or securities (excluding Permitted Junior Securities) on account of principal the Senior Subordinated Note Obligations or for the acquisition of (or premium, if any) or interest on any of the SecuritiesNotes; and
and (2) any payment or distribution of assets of the Company such Note Guarantor of any kind or character, whether in cash, prop- erty property or securitiessecurities (excluding Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions subordination provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), Ten shall be paid by the 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 Guarantor Senior Indebted- ness Indebtedness of such Note Guarantor or their Representative representative or Representatives representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Guarantor 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, and other amounts due on or in connection with, the such Guarantor Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all such Guarantor Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Guarantor Senior Indebtedness; and
and (3) in the event that, notwithstanding the foregoing provisions of this SectionSection 10.05, the Trustee or the Holder of any Security Note shall have received any such payment or dis- tribution distribution of assets of the Company such Note Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment in respect of any other indebt- edness of the Company being subordinated to the payment of the Securities, Senior Subordinated Note Obligations under this Note Guarantee before all Guarantor Senior Indebtedness of such Note Guarantor is paid in full in cash or cash equivalents or payment thereof provided for, then and in such event such payment or distribution (excluding Permitted Junior Securities) 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 such Note Guarantor for application to the payment of all such Guarantor Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all of such Guarantor Senior Indebtedness in full in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of such Guarantor Senior Indebtedness. The consolidation of the Company any such Note Guarantor with, or the merger of the Company such Note Guarantor with or into, another corporation Person or the liquidation or dissolution of the Company such Note Guarantor following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another corporation upon the terms and conditions set forth in Article Eight Person shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company such Note Guarantor for the purposes of this Section 1102 Article if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer or lease, comply with assume the conditions set forth in Article EightNote Guarantee of such Note Guarantor.
Appears in 1 contract
Samples: Indenture (Telegroup Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a) Upon any insolvency payment or bankruptcy case distribution of assets or proceedingsecurities of any Guarantor of any kind or character, whether in cash, property or securities, upon 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, or (b) any liquidation, dissolution or other winding winding-up or liquidation or reorganization of the Companysuch Guarantor, whether voluntary or involuntary and whether or not involving insolvency or in bankruptcy, insolvency, receivership or (c) any other similar proceedings, an assignment for the benefit of creditors or any other marshalling marshaling of assets and liabilities of the Companysuch Guarantor's assets, then and in any such event:
(1) the holders of Guarantor Senior Indebtedness Debt of such Guarantor shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts Obligations due or to become due on or in respect of all such Guarantor Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Debt before the Holders of the Securities are or the Trustee on behalf of such Holders shall be entitled to receive any payment on account by such Guarantor of the principal of (or premium, if any) or interest on the Securities; and
Securities pursuant to its Guarantee, 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 (2except that Holders may receive and retain (I) Permitted Junior Securities and (II) payments made from the defeasance trust described under Article Eight). Before any payment (other than Permitted Junior Securities or by virtue of the defeasance trust) may be made by, or on behalf of, any Guarantor of the principal of or interest on the Securities upon any such dissolution or winding-up or liquidation or reorganization, any payment or distribution of assets or securities of the Company such Guarantor of any kind or character, whether in cash, prop- erty property or securities, by set-off or otherwise, to which the Holders of the Securities or the Trustee on their behalf would be entitled entitled, but for the pro- visions subordination provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding)Indenture, shall be paid made by the such Guarantor 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 or otherwise, directly to the holders of the Guarantor Senior Indebted- ness 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 representatives or to the trustee or trustees or agent or agents under any agreement or indenture under pursuant to which any instruments evidencing any of such Guarantor Senior Indebtedness Debt may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal ofas their respective interests may appear, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment pay all such Guarantor Senior Debt in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any prior or concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Guarantor Senior Indebtedness; andDebt.
(3b) in In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any provision prohibiting such payment or dis- tribution distribution, any payment or distribution of assets or securities of the Company a Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including shall be received by the Trustee or any Holder of Securities at a time when such payment or distribution which may be payable or deliverable is prohibited by reason Section 12.03(a) and before all Obligations in respect of the payment Guarantor Senior Debt of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is such Guarantor are paid in full in cash, or payment thereof provided for, then and in such event such payment or distribution 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 amounts of Guarantor Senior Debt 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 Company such Guarantor Senior Debt may have been issued, as their respective interests may appear, for application to the payment of all the Guarantor Senior Indebtedness Debt remaining unpaid to the extent neces- sary to pay until all such Guarantor Senior Indebtedness Debt has been paid in 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 Guarantor Senior IndebtednessDebt; provided that the Trustee shall be entitled to receive from the holders of Guarantor Senior Debt written notice of the amounts owing on the Guarantor Senior Debt. The consolidation of the Company a Guarantor with, or the merger of the Company a Guarantor with or into, another corporation Person or the liquidation or dissolution of the Company a Guarantor following the conveyance, conveyance or transfer or lease of its properties and assets property as an entirety, or substantially as an entirety entirety, to another corporation Person upon the terms and conditions set forth provided in Article Eight Five shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 12.03 if the corporation formed by such consolidation or into which the Com- pany is merged or the corporation which acquires by conveyance, transfer or lease such properties and assets substantially as an entirety, as the case may be, other Person shall, as a part of such con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth stated in Article EightFive.
Appears in 1 contract
Samples: Indenture (Scientific Games Corp)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets of the Company any Guarantor of any kind or character, whether in cash, prop- erty property or securities, by setto creditors upon any liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or marshaling of assets of such 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 Debt 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 Debt, before any payment or distribution of any kind or character is made on account of any Obligations on the Notes 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 Debt are paid in full in cash or Cash Equiva- xxxxx, any distribution to which the Holders or the Trustee would be entitled but for the pro- visions subordination provisions will be made to the holders of this Article Eleven, including any such payment or distribution which Guarantor Senior Debt as their interests may be payable or deliverable by reason appear (except that Holders shall receive Securities of the payment of any other indebtedness of the Company being Guarantor that are unsecured and subordinated at least to the payment of the Securi- ties (except, so long same extent as the effect of Notes to Guarantor Senior Debt as provided in this parenthetical clause Indenture, do not have a maturity any shorter than the security which it is replacing and will not to cause the Securities Notes to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Guarantor Senior Indebtedness Debt or any class of claims on a parity with PARI PASSU with, or senior to to, the Guarantor Senior Indebtedness, Debt for any payment or distribution). 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 securities which (i) are unsecuredassets of any Guarantor of any kind or character, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinatedwhether in cash, property or securities, to at least which the same extent as Holders or the SecuritiesTrustee under this Indenture would be entitled, to except for the payment of all Senior Indebtedness then outstanding)provisions hereof, shall be paid by the 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 or otherwiseby the Trustee under this Indenture if received by them, directly to the holders of Guarantor Senior Indebted- ness Debt of such Guarantor (PRO RATA to such holders on the basis of the respective amounts of 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 Guarantor Senior Debt remaining unpaid on account of the principal of, and premium, if any, and interest on, and other amounts due on or in connection with, the until all such Guarantor Senior Indebtedness to the extent necessary to make payment Debt has been paid in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, 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.
(3b) To the extent any payment of 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 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 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 provisions of this Sectionforegoing, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company a Guarantor of any kind or char- actercharacter, whether in cash, property or securities, including shall be received by any Holder when such payment or distribution which may be payable or deliverable is prohibited by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the SecuritiesSection 11.11(a), before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Guarantor Senior Debt (PRO RATA to such holders on the basis of the respective amount of 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 payment of all Guarantor Senior Indebtedness Debt remaining unpaid to the extent neces- sary to pay until all such Guarantor Senior Indebtedness Debt has been paid in full in cash or cash equivalentsCash 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 corporation or the liquidation or dissolution of the Company any Guarantor following the conveyance, conveyance or transfer of all or lease substantially all of its properties and assets substantially as an entirety assets, to another corporation upon the terms and conditions set forth provided in Article Eight Section 11.06 hereof and as long as permitted under the terms of the Guarantor Senior Debt of such Guarantor shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 if the such other corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, conveyance or transfer or lease, comply assume such Guarantor's obligations hereunder in accordance with the conditions set forth in Article EightSection 11.06 hereof.
Appears in 1 contract
Samples: Indenture (Aerosol Services Co Inc)
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and involuntary, or whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling marshaling of assets and or liabilities of the Company, whether voluntary or involuntary, or whether or not involving insolvency or bankruptcy, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents Cash Equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, Indebtedness before the Holders of the Securities are entitled to receive any payment or distribution of any kind or character (excluding securities of the Company or any other corporation that are equity securities or are subordinate in right of payment to all Senior Indebtedness, that may be outstanding, to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article ("Permitted Junior Securities")) on account of the principal of (or of, premium, if any) , or interest on the SecuritiesSecurities or other Indenture Obligations or on account of the purchase, redemption, defeasance or other acquisition of , or in respect of, the Securities or other Indenture Obligations (other than amounts previously set aside with the Trustee, or payments previously made, in either case, in accordance with the provisions of Sections 4.2 and 4.3 of this Indenture); and
(2) any payment or distribution of assets of the Company of any kind or character, whether in cash, prop- erty property or securitiessecurities (excluding Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the pro- visions provisions of this Article Eleven, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (except, so long as the effect of this parenthetical clause is not to cause the Securities to be treated in any case or proceeding or similar event described in Subsec- tion (a), (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtedness, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the liquidating trustee or agent or other person the Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebted- ness Indebtedness or their Representative representative or Representatives 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, and other amounts due on or in connection with, the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents Cash Equivalents or, as acceptable to the holders or Senior Indebtedness, in any other manner, of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any such payment or dis- tribution distribution of assets of the Company of any kind or char- actercharacter, whether in cash, property or securitiessecurities (excluding Permitted Junior Securities), including any such payment in respect of principal, premium, if any, and interest on the Securities or distribution which may be payable or deliverable by reason of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, Indenture Obligations before all Senior Indebtedness is paid in full full, in cash or payment thereof provided forCash Equivalents or, as acceptable to the holder of Senior Indebtedness, in any other manner, then and in such event such payment or distribution (excluding Permitted Junior Securities) shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment payments or distribution distributions of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid unpaid, to the extent neces- sary necessary to pay all Senior Indebtedness in full in cash or cash equivalentsCash Equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, 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 corporation Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer transfer, lease or lease other disposal of its properties and assets substantially as an entirety to another corporation Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling marshaling of assets and liabilities of the Company for the purposes of this Section 1102 if the corporation Person formed by such consolidation or into which the Com- pany is merged surviving entity of such merger or the corporation Person which acquires by sale, assignment, conveyance, transfer transfer, lease or lease other disposal of such properties and assets substantially as an entirety, as the case may be, shall, as a part of such con- solidationconsolidation, merger, sale, assignment, conveyance, transfer transfer, lease or leaseother disposal, comply with the conditions set forth in Article Eight.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. In the event of (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, 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 marshalling of assets and liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or cash equiv- alents of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities; and
(2) Upon any payment or distribution of assets or securities of the Company any Guarantor of any kind or character, whether in cash, prop- erty property or securities (excluding any payment or distribution of Permitted Junior Securities), upon any dissolution or winding-up or liquidation or reorganization of such Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all Guarantor Senior Indebtedness of such Guarantor will first be paid in full before the Holders of the Securities or the Trustee on behalf of such Holders will be entitled to receive any payment by such Guarantor of the principal of or interest on the Securities pursuant to such Guarantor's Guarantee, or any payment to acquire any of the Securities for cash, property or securities, by setor any distribution with respect to the Securities of any cash, property or securities (excluding any payment or distribution of Permitted Junior Securities). Before any payment may be made by, or on behalf of, any Guarantor of the principal of or interest on the Securities upon any such dissolution or winding-off up or otherwiseliquidation or reorganization, any payment or distribution of assets or securities of such Guarantor of any kind or character, whether in cash, property or securities (excluding any payment or distribution of Permitted Junior Securities), to which the Holders of the Securities or the Trustee on their behalf would be entitled entitled, but for the pro- visions subordination provisions of this Article ElevenIndenture, including will be made by such Guarantor or by any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securi- ties (exceptreceiver, so long as the effect of this parenthetical clause is not to cause the Securities to be treated trustee in any case or proceeding or similar event described in Subsec- tion (a)bankruptcy, (b) or (c) of this Section 1102 as part of the same class of claims as the Senior Indebtedness or any class of claims on a parity with or senior to the Senior Indebtednessliquidating trustee, for any such payment or distribution of securities which (i) are unsecured, (ii) have an average life and final maturity no shorter than the average life and final maturity of the Securities and (iii) are subor- dinated, to at least the same extent as the Securities, to the payment of all Senior Indebtedness then outstanding), shall be paid by the 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 the Guarantor Senior Indebted- ness Indebtedness of such Guarantor (PRO RATA to such holders on the basis of the respective amounts of such Guarantor Senior Indebtedness held by such holders) or their Representative or Representatives representatives or to the trustee or trustees or agent or agents under any agreement or indenture under pursuant to which any instruments evidencing any of such Guarantor Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal ofas their respective interests may appear, and premium, if any, and interest on, and other amounts due on or in connection with, the Senior Indebtedness to the extent necessary to make payment pay all such Guarantor Senior Indebtedness in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any prior or concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Guarantor Senior Indebtedness; and.
(3b) in In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any provision prohibiting such payment or dis- tribution distribution, any payment or distribution of assets or securities of the Company any Guarantor of any kind or char- actercharacter, whether in cash, property or securitiessecurities (excluding any payment or distribution of Permitted Junior Securities), including shall be received by the Trustee or any Holder of Securities at a time when such payment or distribution which may be payable or deliverable is prohibited by reason Section 13.03(a) and before all obligations in respect of the payment of any other indebt- edness of the Company being subordinated to the payment of the Securities, before all Guarantor Senior Indebtedness is of such Guarantor are paid in full in cash, or payment thereof provided for, then and in such event such payment or distribution 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 Indebtedness (PRO RATA to such holders on the basis of the respective amounts of such 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 payment or distribution agents under any indenture pursuant to which any of assets of the Company such Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all such Guarantor Senior Indebtedness remaining unpaid to the extent neces- sary to pay until all such Guarantor Senior Indebtedness has been paid in 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 Guarantor Senior Indebtedness. The consolidation of the Company any Guarantor with, or the merger of the Company any Guarantor with or into, another corporation or the liquidation or dissolution of the Company any Guarantor following the conveyance, conveyance or transfer or lease of its properties and assets property as an entirety, or substantially as an entirety entirety, to another corporation upon the terms and conditions set forth provided in Article Eight Five (or any replacement provisions as contemplated by Article Five) shall not be deemed a dissolution, winding winding-up, liquidation, reorganization, assignment for the benefit of creditors liquidation or marshalling of assets and liabilities of the Company reorganization for the purposes of this Section 1102 13.03 if the such other corporation formed by such consolidation or into which the Com- pany is merged or the corporation 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 con- solidationconsolidation, merger, conveyance, transfer conveyance or leasetransfer, comply with the conditions set forth stated in Article EightFive (or any replacement provisions as contemplated by Article Five).
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Samples: Indenture (Horton D R Inc /De/)
