Common use of Payments to Creditors Clause in Contracts

Payments to Creditors. Borrower will not make and Creditors will not accept, at any time while any Superior Indebtedness is owing to Lender, (A) any payment upon any Subordinated Indebtedness, (B) any advance, transfer, or assignment of assets to Creditors in any form whatsoever that would reduce at any time or in any way the amount of Subordinated Indebtedness (except with respect to the Specified Equipment, as contemplated by section 4 above), or (C) any transfer of any assets as security for the Subordinated Indebtedness (other than as contemplated by the Creditor Loan Agreement and consented to herein), except upon Lender’s prior written consent. In the event of any distribution, division, or application, whether partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of Borrower’s assets, or the proceeds of Borrower’s assets, in whatever form, to Creditors of Borrower or upon any indebtedness of Borrower, whether by reason of the liquidation, dissolution or other winding-up of Borrower, or by reason of any execution sale, receivership, insolvency, or bankruptcy proceeding, assignment for the benefit of Creditors, proceedings for reorganization, or readjustment of Borrower or Borrower’s properties, then and in such event other than with respect to the proceeds derived from the sale or other disposition of the Specified Equipment, (A) the Superior Indebtedness shall be paid in full before any payment is made upon the Subordinated Indebtedness, and (B) all payments and distributions, of any kind or character and whether in cash, property, or securities, which shall be payable or deliverable upon or in respect of the Subordinated Indebtedness shall be paid or delivered directly to Lender for application in payment of the amounts then due on the Superior Indebtedness until the Superior Indebtedness shall have been paid in full. Nothing contained in this Agreement will limit or impair Creditors’ exercise of their rights under the Creditor Loan Agreement to convert all or any portion of the Subordinated Indebtedness into capital stock of the Company, as contemplated by the Creditor Loan Agreement. In order that Lender may establish its right to prove claims and recover for its own account dividends based on the Subordinated Indebtedness, Creditors do hereby assign all of their respective right, title, and interest in such claims to Lender, subject to Creditors’ rights in the proceeds of the Specified Equipment. Creditors further agree to supply such information and evidence, provide access to and copies of such of Creditors’ records as may pertain to the Subordinated Indebtedness, and execute such instruments as may be required by Lender to enable Lender to enforce all such claims and collect all dividends, payments, or other disbursements which may be made on account of the Subordinated Indebtedness. For such purposes, Creditors hereby irrevocably authorize Lender in its discretion to make and present for or on behalf of Creditor such proofs of claims on account of the Subordinated Indebtedness as Lender may deem expedient and proper and to vote such claims in any such proceeding and to receive and collect any and all dividends, payments, or other disbursements made thereon in whatever form the same may be paid or issued and to apply the same on account of the Superior Indebtedness, other than the proceeds of the Specified Equipment. Should any payment, distribution, security, or proceeds thereof be received by Creditors at any time on the Subordinated Indebtedness contrary to the terms of this Agreement, Creditors promptly will deliver the same to Lender in precisely the form received (except for the endorsement or assignment of Creditors if necessary), for application on or to secure the Superior Indebtedness, whether it is due or not due, and until so delivered the same shall be held in trust by Creditors as property of Lender. In the event Creditors fail to make any such endorsement or assignment, Lender, or any of its officers on behalf of Lender, is hereby irrevocably authorized by Creditors to make the same.

Payments to Creditors. Borrower will not make At all times during the continuance of this Trust, the principal and Creditors will not acceptincome of the Trust shall be subject to claims of general creditors of the Company as set forth in this Section 2.03, and at any time while any Superior Indebtedness is owing to Lender, (A) any payment upon any Subordinated Indebtedness, (B) any advance, transferthe Trustee has actual knowledge, or assignment of assets has determined, that the Company is "Insolvent," as defined in Article V hereof, the Trustee shall suspend any further payments from the Trust Fund to Creditors in any form whatsoever that would reduce at any time or in any way Participants and will hold the amount of Subordinated Indebtedness (except with respect to the Specified Equipment, as contemplated by section 4 above), or (C) any transfer of any assets as security for the Subordinated Indebtedness (other than as contemplated by the Creditor Loan Agreement and consented to herein), except upon Lender’s prior written consent. In the event of any distribution, division, or application, whether partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of Borrower’s assets, or the proceeds of Borrower’s assets, in whatever form, to Creditors of Borrower or upon any indebtedness of Borrower, whether by reason of the liquidation, dissolution or other winding-up of Borrower, or by reason of any execution sale, receivership, insolvency, or bankruptcy proceeding, assignment Trust Fund for the benefit of Creditorsthe Company's general creditors. The Board of Directors and the chief executive officer of the Company shall each have the duty to inform the Trustee of the Company's Insolvency. If the Company or a person claiming to be a creditor of the Company alleges in writing to the Trustee that the Company has become Insolvent, proceedings the Trustee shall independently determine, within 30 days after receipt of such notice, whether the Company is Insolvent and pending such determination, the Trustee shall discontinue payments of Plan benefits to Participants, shall hold the Trust assets for reorganizationthe benefit of the Company's general creditors, and shall resume payments of Plan benefits to Participants in accordance with this Trust Agreement only after the Trustee has determined that the Company is not Insolvent (or readjustment is no longer Insolvent, if the Trustee initially determined the Company to be Insolvent). Unless the Trustee has actual knowledge of Borrower the Company's Insolvency or Borrower’s propertieshas reason to believe that the Company is Insolvent, then and the Trustee shall have no duty to inquire whether the Company is Insolvent. The Trustee may in all events rely on such event other than evidence concerning the Company's Insolvency as may be furnished to the Trustee which will give the Trustee a reasonable basis for making a determination concerning the Company's solvency. Nothing in this Trust Agreement shall in any way diminish any rights of any Participant to pursue his rights as a general creditor of the Company with respect to Plan benefits or otherwise. If the proceeds derived Trustee discontinues payment of benefits from the sale or other disposition Trust pursuant to this Section 2.03 and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments which would have been made to any Participant during the Specified Equipmentperiod of such discontinuance, (A) less the Superior Indebtedness aggregate amount of payments made to such Participant by the Company from its general assets during any such period of discontinuance. Such amount, if any, shall be paid in full before any payment is made upon together with interest thereon at the Subordinated Indebtedness, and (B) all payments and distributions, of any kind or character and whether in cash, property, or securities, which shall be payable or deliverable upon or in respect prime rate as determined by the Trustee for the period. Any assets of the Subordinated Indebtedness shall Trust applied to the satisfaction of claims of general creditors pursuant to this Section 2.03 shall, upon a determination by the Trustee that the Company is no longer Insolvent, be paid or delivered directly immediately reimbursed to Lender for application in payment of the amounts then due on the Superior Indebtedness until the Superior Indebtedness shall have been paid in full. Nothing contained in this Agreement will limit or impair Creditors’ exercise of their rights under the Creditor Loan Agreement to convert all or any portion of the Subordinated Indebtedness into capital stock of Trust by the Company, as contemplated by together with interest thereon at the Creditor Loan Agreement. In order that Lender may establish its right to prove claims and recover for its own account dividends based on the Subordinated Indebtedness, Creditors do hereby assign all of their respective right, title, and interest in such claims to Lender, subject to Creditors’ rights rate specified in the proceeds of the Specified Equipment. Creditors further agree to supply such information and evidence, provide access to and copies of such of Creditors’ records as may pertain to the Subordinated Indebtedness, and execute such instruments as may be required by Lender to enable Lender to enforce all such claims and collect all dividends, payments, or other disbursements which may be made on account of the Subordinated Indebtedness. For such purposes, Creditors hereby irrevocably authorize Lender in its discretion to make and present for or on behalf of Creditor such proofs of claims on account of the Subordinated Indebtedness as Lender may deem expedient and proper and to vote such claims in any such proceeding and to receive and collect any and all dividends, payments, or other disbursements made thereon in whatever form the same may be paid or issued and to apply the same on account of the Superior Indebtedness, other than the proceeds of the Specified Equipment. Should any payment, distribution, security, or proceeds thereof be received by Creditors at any time on the Subordinated Indebtedness contrary to the terms preceding paragraph of this Agreement, Creditors promptly will deliver the same to Lender in precisely the form received (except for the endorsement or assignment of Creditors if necessary), for application on or to secure the Superior Indebtedness, whether it is due or not due, and until so delivered the same shall be held in trust by Creditors as property of Lender. In the event Creditors fail to make any such endorsement or assignment, Lender, or any of its officers on behalf of Lender, is hereby irrevocably authorized by Creditors to make the sameSection 2.03.

Payments to Creditors. Borrower will not make At all times during the continuance of this Trust, the principal and Creditors will not acceptincome of the Trust shall be subject to claims of general creditors of the Company as set forth in this Section 2.03, and at any time while any Superior Indebtedness is owing to Lender, (A) any payment upon any Subordinated Indebtedness, (B) any advance, transferthe Trustee has actual knowledge, or assignment of assets has determined, that the Company is "Insolvent," as defined in Article V hereof, the Trustee shall suspend any further payments from the Trust Fund to Creditors in any form whatsoever that would reduce at any time or in any way Participants and will hold the amount of Subordinated Indebtedness (except with respect to the Specified Equipment, as contemplated by section 4 above), or (C) any transfer of any assets as security for the Subordinated Indebtedness (other than as contemplated by the Creditor Loan Agreement and consented to herein), except upon Lender’s prior written consent. In the event of any distribution, division, or application, whether partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of Borrower’s assets, or the proceeds of Borrower’s assets, in whatever form, to Creditors of Borrower or upon any indebtedness of Borrower, whether by reason of the liquidation, dissolution or other winding-up of Borrower, or by reason of any execution sale, receivership, insolvency, or bankruptcy proceeding, assignment Trust Fund for the benefit of Creditorsthe Company's general creditors. The Board of Directors and the chief executive officer of the Company shall each have the duty to inform the Trustee of the Company's Insolvency. If the Company or a person claiming to be a creditor of the Company alleges in writing to the Trustee that the Company has become Insolvent, proceedings the Trustee shall independently determine, within 30 days after receipt of such notice, whether the Company is Insolvent and, pending such determination, the Trustee shall discontinue payments of Plan benefits to Participants, shall hold the Trust assets for reorganizationthe benefit of the Company's general creditors, and shall resume payments of Plan benefits to Participants in accordance with this Trust Agreement only after the Trustee has determined that the Company is not Insolvent (or readjustment is no longer Insolvent, if the Trustee initially determined the Company to be Insolvent). Unless the Trustee has actual knowledge of Borrower the Company's Insolvency or Borrower’s propertieshas reason to believe that the Company is Insolvent, then and the Trustee shall have no duty to inquire whether the Company is Insolvent. The Trustee may in all events rely on such event other than evidence concerning the Company's Insolvency as may be furnished to the Trustee which will give the Trustee a reasonable basis for making a determination concerning the Company's solvency. Nothing in this Trust Agreement shall in any way diminish any rights of any Participant to pursue his rights as a general creditor of the Company with respect to Plan benefits or otherwise. If the proceeds derived Trustee discontinues payment of benefits from the sale or other disposition Trust pursuant to this Section 2.03 and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments which would have been made to any Participant during the Specified Equipmentperiod of such discontinuance, (A) less the Superior Indebtedness aggregate amount of payments made to such Participant by the Company from its general assets during any such period of discontinuance. Such amount, if any, shall be paid in full before any payment is made upon together with interest thereon at the Subordinated Indebtedness, and (B) all payments and distributions, of any kind or character and whether in cash, property, or securities, which shall be payable or deliverable upon or in respect prime rate as determined by the Trustee for the period. Any assets of the Subordinated Indebtedness shall Trust applied to the satisfaction of claims of general creditors pursuant to this Section 2.03 shall, upon a determination by the Trustee that the Company is no longer Insolvent, be paid or delivered directly immediately reimbursed to Lender for application in payment of the amounts then due on the Superior Indebtedness until the Superior Indebtedness shall have been paid in full. Nothing contained in this Agreement will limit or impair Creditors’ exercise of their rights under the Creditor Loan Agreement to convert all or any portion of the Subordinated Indebtedness into capital stock of Trust by the Company, as contemplated by together with interest thereon at the Creditor Loan Agreement. In order that Lender may establish its right to prove claims and recover for its own account dividends based on the Subordinated Indebtedness, Creditors do hereby assign all of their respective right, title, and interest in such claims to Lender, subject to Creditors’ rights rate specified in the proceeds of the Specified Equipment. Creditors further agree to supply such information and evidence, provide access to and copies of such of Creditors’ records as may pertain to the Subordinated Indebtedness, and execute such instruments as may be required by Lender to enable Lender to enforce all such claims and collect all dividends, payments, or other disbursements which may be made on account of the Subordinated Indebtedness. For such purposes, Creditors hereby irrevocably authorize Lender in its discretion to make and present for or on behalf of Creditor such proofs of claims on account of the Subordinated Indebtedness as Lender may deem expedient and proper and to vote such claims in any such proceeding and to receive and collect any and all dividends, payments, or other disbursements made thereon in whatever form the same may be paid or issued and to apply the same on account of the Superior Indebtedness, other than the proceeds of the Specified Equipment. Should any payment, distribution, security, or proceeds thereof be received by Creditors at any time on the Subordinated Indebtedness contrary to the terms preceding paragraph of this Agreement, Creditors promptly will deliver the same to Lender in precisely the form received (except for the endorsement or assignment of Creditors if necessary), for application on or to secure the Superior Indebtedness, whether it is due or not due, and until so delivered the same shall be held in trust by Creditors as property of Lender. In the event Creditors fail to make any such endorsement or assignment, Lender, or any of its officers on behalf of Lender, is hereby irrevocably authorized by Creditors to make the sameSection 2.03.

Payments to Creditors. Borrower will make each payment which it owes under the Loan Documents not make later than noon, Eastern time, on the date such payment becomes due and Creditors will not acceptpayable, at in lawful money of the United States of America, without set-off, deduction or counterclaim, and in immediately available funds. Any payment received after such time shall be deemed to have been made on the next following Business Day. Should any time while any Superior Indebtedness is owing to Lendersuch payment become due and payable on a day other than a Business Day, (A) any the maturity of such payment upon any Subordinated Indebtedness, (B) any advance, transfer, or assignment of assets to Creditors in any form whatsoever that would reduce at any time or in any way the amount of Subordinated Indebtedness (except with respect shall be extended to the Specified Equipmentnext succeeding Business Day, as contemplated by section 4 above)and, in the case of a payment of principal or (C) any transfer of any assets as security past due interest, interest shall accrue and be payable thereon for the Subordinated Indebtedness (other than period of such extension as contemplated by provided in the Creditor Loan Agreement and consented to herein), except upon Lender’s prior written consentDocument under which such payment is due. In the event of any distribution, division, or application, whether partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of Borrower’s assets, or the proceeds of Borrower’s assets, in whatever form, to Creditors of Borrower or upon any indebtedness of Borrower, whether by reason of the liquidation, dissolution or other winding-up of Borrower, or by reason of any execution sale, receivership, insolvency, or bankruptcy proceeding, assignment for the benefit of Creditors, proceedings for reorganization, or readjustment of Borrower or Borrower’s properties, then and in such event other than with respect to the proceeds derived from the sale or other disposition of the Specified Equipment, (A) the Superior Indebtedness Each payment under a Loan Document shall be paid in full before any due and payable at the place provided therein and, if no specific place of payment is made upon the Subordinated Indebtednessprovided, and (B) all payments and distributions, of any kind or character and whether in cash, property, or securities, which shall be due and payable or deliverable upon or in respect at the place of the Subordinated Indebtedness shall be paid or delivered directly to Lender for application in payment of the amounts then respective Creditor's Note. So long as the Obligations have not been declared due on the Superior Indebtedness until the Superior Indebtedness shall have been paid in full. Nothing contained in this Agreement will limit and payable pursuant to Section 4.2, when Collateral Agent collects or impair Creditors’ exercise of their rights under the Creditor Loan Agreement to convert all or any portion of the Subordinated Indebtedness into capital stock of the Company, as contemplated by the Creditor Loan Agreement. In order that Lender may establish its right to prove claims and recover for its own account dividends based on the Subordinated Indebtedness, Creditors do hereby assign all of their respective right, title, and interest in such claims to Lender, subject to Creditors’ rights in the proceeds of the Specified Equipment. Creditors further agree to supply such information and evidence, provide access to and copies of such of Creditors’ records as may pertain to the Subordinated Indebtedness, and execute such instruments as may be required by Lender to enable Lender to enforce all such claims and collect all dividends, payments, or other disbursements which may be made receives money on account of the Subordinated IndebtednessObligations, Collateral Agent shall distribute all money so collected or received, after deduction of amounts then due and owing to Collateral Agent, and each Creditor shall apply all such money so distributed, as follows: (a) first, for the payment of interest, fees and expenses then due and payable (including, without limitation, amounts due under Section 4 of the Chase Loan Agreement and Sections 2.11, 2.12, 2.14 and 2.15 of the ING Credit Agreement); (b) then, for the payment of principal then due, which payment shall be made ratably to each Creditor in the amount of its Percentage Share; (c) then, for the prepayment of principal on the Notes, which payment shall be made ratably to each Creditor in the amount of its Percentage Share; and (d) last, for the payment or prepayment of any other Obligations. For All distributions of amounts described in subsections (a) or (d) above shall be made by Collateral Agent pro rata to each Creditor then owed Obligations described in such purposessubsection in proportion to all amounts owed to all Creditors which are described in such subsection. If any Obligations have been declared due and payable pursuant to Section 4.2, Creditors hereby irrevocably authorize Lender in its discretion to make and present for all money collected or on behalf of Creditor such proofs of claims received by Collateral Agent on account of the Subordinated Indebtedness as Lender may deem expedient Obligations, after deduction of amounts then due and proper and to vote such claims in any such proceeding and to receive and collect any and all dividends, payments, or other disbursements made thereon in whatever form the same may be paid or issued and to apply the same on account of the Superior Indebtedness, other than the proceeds of the Specified Equipment. Should any payment, distribution, security, or proceeds thereof be received by Creditors at any time on the Subordinated Indebtedness contrary owing to the terms of this AgreementCollateral Agent, Creditors promptly will deliver the same to Lender in precisely the form received (except for the endorsement or assignment of Creditors if necessary), for application on or to secure the Superior Indebtedness, whether it is due or not due, and until so delivered the same shall be held distributed to each Creditor in trust by Creditors as property of Lender. In the event Creditors fail proportion to make any such endorsement or assignment, Lender, or any of its officers on behalf of Lender, is hereby irrevocably authorized by Creditors to make the samePercentage Share.