Common use of Restricted Payments upon Senior Default Clause in Contracts

Restricted Payments upon Senior Default. Notwithstanding the terms of the Subordinated Debt Documents, the Subordinated Creditors shall neither be entitled to nor shall they receive or accept, and no Loan Party shall make, any payment or Distribution with respect to the Subordinated Debt (whether for principal, interest, premium, equity distribution or otherwise) (notwithstanding the expressed maturity or any other time for the payment of any Subordinated Debt) other than Permitted Subordinated Debt Payments and Permitted Additional Subordinated Securities, subject to the terms of Section 2.2 of this Agreement; provided, however, that the Subordinated Creditors shall neither be entitled to nor shall they receive or accept, and no Loan Party shall make, any payment or Distribution with respect to the Subordinated Debt (including, any Permitted Subordinated Debt Payment), but excluding reasonable out-of-pocket costs and expenses (including reasonable attorney’s fees) and Permitted Additional Subordinated Securities if, at the time of such payment or immediately after giving effect thereto a Senior Payment Default exists. The Borrower may resume payments and Distributions of Permitted Subordinated Debt Payments and Permitted Additional Subordinated Securities (and may make any payments and Distributions of Permitted Subordinated Debt Payments and Permitted Additional Subordinated Securities missed due to the application of the preceding paragraph) and the Subordinated Creditors may accept such payments and Distributions in respect of the Subordinated Debt, in the case of a Senior Payment Default, upon a cure or waiver thereof in accordance with the terms of the Senior Debt Documents or, if the Senior Payment Default resulted in or from the acceleration of the Senior Debt, upon such acceleration being annulled or rescinded in accordance with the terms of the Senior Debt Documents.

Restricted Payments upon Senior Default. Notwithstanding the terms of the Subordinated Debt Documents, the The Subordinated Creditors shall neither be entitled to nor shall they receive or accept, and no Loan Party shall make, any payment or Distribution distribution with respect to the Subordinated Debt (whether for principal, interest, premium, equity distribution or otherwise) (notwithstanding the expressed maturity or any other time for the payment of any Subordinated Debt) other than Permitted Subordinated Debt Expense Payments and Permitted Additional Subordinated Securities, subject to the terms of Section 2.2 of this Agreement; provided, however, that the Subordinated Creditors shall neither be entitled to nor shall they receive or accept, and no Loan Party shall make, any payment or Distribution with respect to the Subordinated Debt (including, any Permitted Subordinated Debt Payment), but excluding reasonable out-of-pocket costs and expenses (including reasonable attorney’s fees) and Permitted Additional Subordinated Securities if, at the time of such payment or immediately after giving effect thereto thereto: (i) the Subordinated Creditor Representative shall have received a Senior Payment Default Notice from the Senior Creditor Representative stating that a Senior Payment Default exists; or (ii) subject to the last sentence of this Section 2.3(a), the Subordinated Creditor Representative shall have received a Senior Covenant Default Notice from the Senior Creditor Representative stating that a Senior Covenant Default exists or would be created by the making of such payment and a blockage period is being invoked. The Borrower may resume payments and Distributions of Permitted Subordinated Debt Payments and Permitted Additional Subordinated Securities (and may make any payments and Distributions of Permitted Subordinated Debt Payments and Permitted Additional Subordinated Securities missed due to the application of the preceding paragraphclauses (i) and the Subordinated Creditors may accept such payments and Distributions or (ii) above of this Section 2.3) in respect of the Subordinated Debt, : (1) in the case of a Senior Payment DefaultDefault referred to in clause (i) of this Section 2.3(a), upon a cure or waiver thereof in accordance with the terms of the Senior Debt Documents or, if the Senior Payment Default resulted in or from the acceleration of the Senior Debt, upon such acceleration being annulled or rescinded in accordance with the terms of the Senior Debt Documents; or (2) in the case of a Senior Covenant Default referred to in clause (ii) of this Section 2.3(a), upon the earlier to occur of (y) the cure or waiver of all such Senior Covenant Defaults identified in the Senior Covenant Default Notice in accordance with the terms of the Senior Debt Documents, and (z) the expiration of 180 days from the date on which the respective Senior Covenant Default Notice was received by the Subordinated Creditor Representative in accordance with Section 9 hereof. Notwithstanding any provision of this Section 2.3 to the contrary: (x) the Borrower shall not be prohibited from making, and Subordinated Creditors shall not be prohibited from receiving, payments under clause (ii) of this Section 2.3(a) for more than an aggregate of 180 days within any period of 360 consecutive days; and (y) no Senior Covenant Default existing on the date any Senior Covenant Default Notice is given pursuant to clause (ii) of this Section 2.3(a) (and with respect to which the Senior Creditor Representative had at that time actual knowledge) shall be used, unless the same shall have ceased to exist (whether by the waiver or cure thereof) for a period of at least 60 consecutive days, as a basis for any subsequent Senior Covenant Default Notice, provided that if, on the date that any Senior Covenant Default Notice is issued, the Borrower is in default of one or more of the financial covenants set forth in the Senior Debt Documents, the Senior Creditor Representative shall be permitted, subject to the other terms and conditions hereof, to use a subsequent default of the same financial covenant(s) (i.e., a default occurring during a subsequent measurement period) as the basis for the issuance of a subsequent Senior Covenant Default Notice.