Securities Subordinated to Senior Indebtedness. The Company and each Holder of a Security, by his acceptance thereof, agree that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of (1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property, (2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, (3) any assignment by the Company for the benefit of creditors, or (4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.
Appears in 5 contracts
Samples: Indenture (LTC Properties Inc), Indenture (LTC Properties Inc), Indenture (LTC Properties Inc)
Securities Subordinated to Senior Indebtedness. The Company Except as otherwise specified as contemplated by Section 301 for any series of Securities, the Corporation covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities of any series and the payment of the principal of, of and any premium (if any) and or interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, each series is subordinatedsubordinate, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness. Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any one amendment, modification or more waiver of them may enforce such provisionsany term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. In the event (a) of any payment by, or distribution of assets of, the Corporation of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or (b) subject to the provisions of Section 1402 that the Company (i) a default shall default in have occurred and be continuing with respect to the payment of principal, interest or any principal of (or premium, if any) or interest other monetary amounts due and payable on any Senior Indebtedness and such default shall have continued beyond the period of grace, if any, specified in the Company when instrument evidencing such Senior Indebtedness (and the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon Trustee shall have received written notice of such default to thereof from the Company by the Corporation or one or more holders of Senior Indebtedness or their representative or representatives or the trustee or trustees under any trustee thereforindenture pursuant to which any such Senior Indebtedness may have been issued), unless and until such default or (ii) the maturity of any Senior Indebtedness shall have been cured or waived or accelerated because of a default in respect of such Senior Indebtedness (and the Trustee shall have ceased received written notice thereof from the Corporation or one or more holders of Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to existwhich any such Senior Indebtedness may have been issued), no direct then:
(i) the holders of all Senior Indebtedness shall first be entitled to receive, in the case of (a) above, payment of all amounts due or indirect to become due upon all Senior Indebtedness and, in the case of subclauses (i) and (ii) of clause (b) above, payment (in cashof all amounts due thereon, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money's worth, before the Holders of any of the Securities are entitled to be made receive any payment on account of the principal of or any premium or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, including, without limitation, any payments made pursuant to Article Eleven or Article Twelve;
(ii) any payment by, or distribution of assets of, the Corporation of any kind or character, whether in cash, property or securities, to which the Holders of any of the Securities would be entitled except for the provisions of this Article, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Corporation being subordinated to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment)Securities, which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered by the Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Company indebtedness evidenced by such Securities; and
(including any interest thereon accruing after the commencement of any such proceedingsiii) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Corporation of any character kind or any securitycharacter, whether in cash, securities property or other property (other than securities securities, including any such payment or distribution which may be payable or deliverable by reason of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to any other indebtedness of the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Corporation being subordinated to the payment of all Senior Indebtedness such Securities, in respect of principal of or any premium or interest on any of the Company at Securities or in connection with the time outstanding and to repurchase by the Corporation of any securities issued in respect thereof under any such plan or reorganization or readjustment)of the Securities, shall be received by the Trustee or any Holder in contravention the Holders of any of the terms hereof Securities when such payment or distribution is prohibited pursuant to this Section, such payment or security shall be received in trust for the benefit of, and distribution shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness of or their representative or representatives or to the Company at the time outstanding in accordance with the priorities then existing among trustee or trustees under any indenture pursuant to which any instruments evidencing any such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness Indebtedness. Notwithstanding the foregoing, at any time after the 90th day following the date of deposit of money or Government Obligations pursuant to Section 1304 (provided all other conditions set out in such Section shall have been satisfied) the Company, shall, as between the Company funds so deposited and its creditors other than the any interest thereon will not be subject to any rights of holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery those arising under this Article. For purposes of this Indenture Article Fourteen, the words "cash, property or securities" shall not be deemed to an agent include shares of stock of the Corporation as reorganized or readjusted, or securities of the Corporation or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article with respect to the Securities to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior Indebtedness is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment. The consolidation of the Company at Corporation with, or the time outstanding, be necessary or appropriate to assure the effectiveness merger of the subordination effected by these provisionsCorporation into, another Person or the liquidation or dissolution of the Corporation following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article Eight hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section if such other Person shall, as part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Eight hereof.
Appears in 5 contracts
Samples: Subordinated Indenture (Duke Energy Corp), Subordinated Indenture (Sempra Energy Holdings), Subordinated Indenture (Duke Capital Financing Trust Iii)
Securities Subordinated to Senior Indebtedness. (a) The Company agrees, and each Holder of a Security, the Securities by his acceptance thereofthereof likewise agrees, agree that (a) the payment of the principal of, premium (premium, if any) , and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect all of the Securitiesforegoing, including on account a "Payment or Distribution") is subordinated and junior in right of the acquisition or redemption of Securities by the Company, is subordinatedpayment, to the extent and in the manner provided in such Security or this Article 10, except as provided in the supplemental indenture pursuant to which such Security is issuedSection 8.02, to the prior payment in full in cash of all Senior Indebtedness specified in such Security whether outstanding on the date hereof or in such supplemental indenturehereafter created, incurred, assumed or guaranteed. Such subordination provisions A Payment or Distribution shall constitute a continuing offer include any asset of any kind or character which is not unacceptable to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtednessthe Trustee, and such provisions are made for the benefit may consist of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, securities or other property, securities, by set-off or otherwise) , and shall be made or agreed to be made on account of the principal of or interest on include, without limitation, any of the Securitiespurchase, or in respect of any redemption, retirement, purchase redemption or other acquisition of the Securities or the making of any deposit of the Securities. In the event offunds or securities pursuant to this Indenture (including, without limitation, any deposit pursuant to Article 8 hereof).
(1b) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any The Senior Indebtedness of the Company shall continue to be prejudiced Senior Indebtedness and entitled to the benefit of these subordination provisions irrespective of any amendment, modification or waiver of any term of any instrument relating to the Senior Indebtedness or the extension or renewal or refinancing of the Senior Indebtedness.
(c) All the provisions of this Indenture and the Securities shall be subject to the provisions of this Article 10 so far as they may be applicable thereto, except that nothing in this Article 10 shall apply to claims for, or payments to, the Trustee under or pursuant to Section 7.07.
(d) No right of any holder of any Senior Indebtedness to enforce subordination of the indebtedness evidenced by the Securities as herein provided shall at any time or in any way be affected or impaired by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Companyany Paying Agent, the Holders of the Securities, the Trustee or the holders of the Senior Indebtedness, or by any noncompliance by the Company, any Paying Agent, the Holders of the Securities or the Trustee with any of each series shall be subrogated to all rights the terms, provisions and covenants of the Securities or this Indenture, regardless of any holders knowledge thereof that any such holder of Senior Indebtedness may have or be otherwise charged with.
(e) In the event that the Securities are declared due and payable before their expressed maturity because of the Company to receive any further payments or distributions applicable to the Senior Indebtedness occurrence of a default hereunder, the Company until the indebtedness evidenced by the Securities will give prompt notice in writing of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed happening to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 5 contracts
Samples: Indenture (Sizeler Property Investors Inc), Indenture (Sizeler Property Investors Inc), Indenture (Sizeler Property Investors Inc)
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness but the Securities shall in all respects rank pari passu with all other Senior Subordinated Indebtedness of the Issuer. The Securities shall rank senior to all existing and any one or more future Indebtedness of them may enforce such provisions. In the event Issuer that is neither Senior Indebtedness nor Senior Subordinated Indebtedness and only Indebtedness of the Company Issuer that is Senior Indebtedness shall rank senior to the Securities in accordance with the provisions set forth herein.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company Issuer and the Trustee by the holders of Senior Indebtedness or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived waived, or shall have has ceased to exist, or any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofIssuer (or cash in lieu of fractional shares thereof).
(1c) If any default (other than a default described in paragraph (b) of this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the Issuer and the Trustee of written notice thereof (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness specifying an election to prohibit such payment and other action by the Issuer in accordance with the following provisions of this paragraph (c), the Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) of this Section 13.1 during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Issuer may resume payments on the Securities following such Payment Blockage Period. Any number of Payment Notices may be given; provided, however, that (i) not more than one Payment Notice shall be given within a period of any 360 consecutive days, and (ii) no default that existed upon the date of such Payment Notice or the commencement of such Payment Blockage Period (whether or not such event of default is on the same issue of Senior Indebtedness) shall be made the basis for the commencement of any other Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver, conservator, liquidator or trustee of the Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Code), and is not dismissed within 60 days after such filing; or (ii) the Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of debt, dissolution, liquidation or other relief with respect to itself or its debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Code) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails generally to, or cannot, pay its creditors debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyIssuer takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), adjustment) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Issuer ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Issuer the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred to, to the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyIssuer or any Holder of Securities. Nothing contained herein shall impair, as between the Issuer and the Holders of Securities of each series, the obligation of the Issuer to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of to remove cash, securities or other property otherwise payable or deliverable to the Company Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company Issuer and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company Issuer in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 4 contracts
Samples: Indenture (Hovnanian Enterprises Inc), Senior Subordinated Indenture (Hovnanian Enterprises Inc), Indenture (Hovnanian Enterprises Inc)
Securities Subordinated to Senior Indebtedness. (1) The Company agrees, and each Holder of a Security, the Securities by his acceptance thereofthereof likewise agrees, agree that (a) the payment of the principal of, premium (premium, if any) , and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect all of the Securitiesforegoing, including on account a "Payment or Distribution") is subordinated and junior in right of the acquisition or redemption of Securities by the Company, is subordinatedpayment, to the extent and in the manner provided in such Security or this Article 11, except as provided in the supplemental indenture pursuant to which such Security is issuedArticle 8, to the prior payment in full in cash of all Senior Indebtedness specified in such Security whether outstanding on the date hereof or in such supplemental indenturehereafter created, incurred, assumed or guaranteed. Such subordination provisions A Payment or Distribution shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, include any asset of any kind or continue to hold, any of such Senior Indebtednesscharacter, and such provisions are made for the benefit may consist of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, securities or other property, securities, by set-off or otherwise) , and shall be made or agreed to be made on account of the principal of or interest on include, without limitation, any of the Securitiespurchase, or in respect of any redemption, retirement, purchase redemption or other acquisition of Securities or the making of any deposit of the Securities. In the event of
funds or securities pursuant to this Indenture (1) including, without limitation, any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating deposit pursuant to the Company, its creditors or its property,Article 8 hereof).
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any The Senior Indebtedness of the Company shall continue to be prejudiced Senior Indebtedness and entitled to the benefit of these subordination provisions irrespective of any amendment, modification or waiver of any term of any instrument relating to refinancing of the Senior Indebtedness.
(3) All the provisions of this Indenture and the Securities shall be subject to the provisions of this Article 11 so far as they may be applicable thereto, except that nothing in this Article 11 shall apply to claims for, or payments to, the Trustee under or pursuant to Section 7.7.
(4) No right of any holder of any Senior Indebtedness to enforce subordination of the indebtedness evidenced by the Securities as herein provided shall at any time or in any way be affected or impaired by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Companyany Paying Agent, the Holders of the Securities, the Trustee or the holders of the Senior Indebtedness, or by any noncompliance by the Company, any Paying Agent, the Holders of the Securities or the Trustee with any of each series shall be subrogated to all rights the terms, provisions and covenants of the Securities or this Indenture, regardless of any holders knowledge thereof that any such holder of Senior Indebtedness of the Company to receive any further payments may have or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which be otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionscharged with.
Appears in 4 contracts
Samples: Indenture (Alternative Living Services Inc), Indenture (Rent Way Inc), Indenture (Sterling House Corp)
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In Indebtedness.
(b) Subject to Section 13.4, if (i) the event that the Company Issuer shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company Issuer and the Trustee by the holders of Senior Indebtedness or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived waived, or shall have has ceased to exist, or any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofIssuer (or cash in lieu of fractional shares thereof).
(1c) If any default (other than a default described in paragraph (b) of this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the Issuer and the Trustee of written notice thereof (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness specifying an election to prohibit such payment and other action by the Issuer in accordance with the following provisions of this paragraph (c), the Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) of this Section 13.1 during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Issuer may resume payments on the Securities following such Payment Blockage Period. Any number of Payment Notices may be given; provided, however, that (i) not more than one Payment Notice shall be given within a period of any 360 consecutive days, and (ii) no default that existed upon the date of such Payment Notice or the commencement of such Payment Blockage Period (whether or not such event of default is on the same issue of Senior Indebtedness) shall be made the basis for the commencement of any other Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver, conservator, liquidator or trustee of the Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Code), and is not dismissed within 60 days after such filing; or (ii) the Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of debt, dissolution, liquidation or other relief with respect to itself or its debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Code) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails generally to, or cannot, pay its creditors debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyIssuer takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), adjustment) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Issuer ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Issuer the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred to, to the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of such Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyIssuer or any Holder of Securities. Nothing contained herein shall impair, as between the Issuer and the Holders of Securities of each series, the obligation of the Issuer to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of to remove cash, securities or other property otherwise payable or deliverable to the Company Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company Issuer and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company or consent to Issuer in respect of any security interest the filing creation of a financing statement with respect thereto) as may, in the opinion of counsel designated which is not prohibited by the holders provisions of a majority in principal amount this Indenture.
(i) The securing of any obligations of the Senior Indebtedness of Issuer, otherwise ranking on a parity with the Company at Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 4 contracts
Samples: Indenture (Hovnanian Enterprises Inc), Subordinated Indenture (Hovnanian Enterprises Inc), Indenture (Hovnanian Enterprises Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, thereof is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on or other amounts in respect of, all Senior Indebtedness specified before the Holders of the Securities are entitled to receive any payment on account of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such Security proceedings in respect of the Securities after giving effect to any concurrent payment or distribution in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any respect of such Senior Indebtedness, except securities which are subordinate and junior in right of payment to the payment of all Senior Indebtedness then outstanding;
(2) In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (1) or the following clause (3) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such provisions Security so becomes due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 5.02, be entitled to receive payment in full of all principal of, and premium and interest on or other amounts in respect of, all such Senior Indebtedness before the Holders of the Securities of such series are made entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(3) In the benefit of event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one to accelerate the maturity thereof, if either
(A) notice of such default, in writing or more of them may enforce such provisions. In the event that by telegram, shall have been given to the Company and to the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal or interest and within 90 days in the case of any principal other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 13.01(3) in any twelve months period, or
(or B) judicial proceedings shall be pending in respect of such default, the Holders of the Securities and the Trustee for their benefit shall not be entitled to receive any payment on account of principal, premium, if any) , or interest and Additional Amounts thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on any or other amounts in respect of, such Senior Indebtedness shall have been made or provided for. The Trustee, forthwith upon receipt of any notice received by it pursuant to this Section 13.01(3), shall, as soon as practicable, send a notice thereof to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security Register. In case despite the foregoing provisions, any payment or distribution shall, in any such event, be paid or delivered to any Holder of the Company when the same becomes due and payable, whether at maturity Securities or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by Trustee for their benefit before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid and delivered to the holders of Senior Indebtedness (or any trustee therefor, unless and their duly authorized representatives) until such default all Senior Indebtedness shall have been cured or waived or paid in full. The Company shall have ceased give written notice to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition arrangement or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after within the commencement meaning of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereofthis Section 13.01. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, Upon any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities assets of the Company or any other corporation provided for by a plan of reorganization or readjustment referred to in this Article Thirteen, the payment of which are subordinateTrustee, at least subject to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Section 315(a) through 315(b) of the Company at Trust Indenture Act, and the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), Holders of the Securities shall be received by entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered to the Trustee or any Holder in contravention to the Holders of any of the terms hereof such payment or distribution or security shall be received in trust Securities, for the benefit of, and shall be paid over or delivered and transferred topurpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the and other indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Thirteen. The Trustee shall be subrogated entitled to all rights conclusively rely on the delivery to it of any holders a written notice by a person representing himself to be a holder of Senior Indebtedness of the Company to receive any further payments (or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities a trustee or agent on behalf of such series shall have holder) to establish that such notice has been paid in full, and such payments or distributions received given by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the Companyevent that the Trustee determines, shallin good faith, that further evidence is required with respect to the right of any person as between the Company and its creditors other than the holders a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 13.01, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Company, on Trustee as to the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account amount of Senior Indebtedness of held by such person, as to the Companyextent to which such person is entitled to participate in such payment or distribution, and not on account of as to other facts pertinent to the Securities rights of such series. The Trustee person under this Section 13.01, and Holders will take if such action (including, without limitationevidence is not furnished, the delivery of this Indenture Trustee may defer any payment to an agent for the holders of Senior Indebtedness of the Company or consent such person pending judicial determination as to the filing right of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate such person to assure the effectiveness of the subordination effected by these provisionsreceive such payment.
Appears in 3 contracts
Samples: Subordinated Indenture (BNC Bancorp), Subordinated Indenture (Eagle Bancorp Inc), Subordinated Indenture (Eagle Bancorp Inc)
Securities Subordinated to Senior Indebtedness. The Company Company, for itself and its successors, and each Holder of a SecurityHolder, by his or her acceptance thereofof Securities, agree agrees that (a) the payment of the principal Principal of, premium (premium, if any) , and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedthis Article 10, to the prior right of payment in full to all present and future Senior Indebtedness, and that these subordination provisions are for the benefit of all the holders of Senior Indebtedness. The provisions of this Article 10 are for the benefit of the holders of the Senior Indebtedness specified from time to time (and their successors and assigns) and shall be enforceable directly by them and their respective Representatives directly against the Company, the Trustee and the Holders (and their successors and assigns). The provisions of this Article 10 shall be a continuing agreement and shall be irrevocable and shall remain in such Security full force and effect until payment in the full of the Senior Indebtedness in cash or in such supplemental indenture. Such subordination provisions cash equivalents, and shall constitute a continuing and irrevocable offer to all Persons who, in reliance upon such provisions, who become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of Indebtedness (whether such Senior Indebtedness and any one was created or more of them may enforce such provisions. In acquired before or after the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any issuance of the Securities), or in respect each of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding which holders shall be deemed for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all purposes hereof to have acquired Senior Indebtedness in reliance upon the provisions of the Company (including any interest thereon accruing after this Article 10. The provision of this Article 10 shall survive the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities reorganization or other property, shall be made proceedings with respect to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan Person and the discharge of any claim in connection with such reorganization or readjustment other proceedings, including, without limitation, the payment discharge of which is subordinate, at least to any Senior Indebtedness. The holders of the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness and their respective representatives are hereby authorized to demand specific performance of the Company provisions of this Article 10 at the any time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of when the Company or any other corporation provided for by Holder shall have failed to comply with any provision of this Article 10 applicable to it, and the Company and each Holder hereby irrevocably waives any defense based on the adequacy of a plan of reorganization or readjustment the payment of which are subordinate, remedy at least law that might be asserted as a bar to the extent provided remedy of specific performance hereof in these subordination provisions with respect to the indebtedness evidenced any action brought therefor by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionstheir respective representatives.
Appears in 3 contracts
Samples: Subordinated Indenture (Credit Suisse First Boston Usa Inc), Subordinated Indenture (Credit Suisse First Boston Usa Inc), Subordinated Indenture (Donaldson Lufkin & Jenrette Inc /Ny/)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees that anything in this Indenture or the Secu- rities of any Series to the contrary notwithstanding, the indebtedness evi- denced by the Securities of each Series is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein, and each Holder of a SecuritySecurities of each Series, by his such Holder's acceptance thereof, agree that (a) likewise covenants and agrees to the subordination herein provided and shall be bound by the provisions hereof. If any default occurs and is continuing in the payment when due, whether at maturity, upon any redemption, by declaration or otherwise, of the any principal of, premium (if any) and interest on, unpaid drawings for letters of credit issued in respect of, or regularly accruing fees with respect to, any Senior Indebtedness, no pay- ment of any kind or character shall be made by or on and behalf of the Company or any Additional Amounts other person on its or their behalf with respect to each and all the Securities and (b) any principal of, in- terest on or other payment amounts owing in respect of the Securities, including on account Securities or to acquire any of the acquisition Securities for cash, property or redemption otherwise. In addition, if any other event of Securities by the Companydefault occurs and is continuing with respect to any Senior In- debtedness, as such event of default is subordinated, to the extent and defined in the manner provided in such Security instrument creating or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of evidencing such Senior Indebtedness, and such provisions are made for the benefit of permitting the holders of such Senior Indebtedness In- debtedness then outstanding to accelerate the maturity thereof and any one if the holder or more holders of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness or the trustee or agent acting on behalf of the Company when the same becomes due and payable, whether at maturity or at such Senior Indebtedness (each such person a date fixed for prepayment or by declaration or otherwise, then, upon "Representative") gives written notice of such the event of default to the Company by the holders of Senior Indebtedness or any trustee thereforTrustee (a "Default No- xxxx"), then, unless and until all events of default have been cured or waived or have ceased to exist or the Trustee receives notice from 62 the Representative for the respective issue of Senior Indebtedness terminating the Blockage Period (as defined below), during the 180 days after the delivery of such Default Notice (the "Blockage Period"), neither the Company nor any other person on its behalf shall (x) make any payment of any kind or character with respect to any principal of, interest on or other amounts owing in re- spect of the Securities or (y) acquire any of the Securities for cash, prop- erty or otherwise. Notwithstanding anything herein to the contrary, in no event will a Blockage Period extend beyond 180 days from the date the payment on the Securities was due and only one such Blockage Period may be commenced within any 360 consecutive days. No event of default which existed or was con- tinuing on the date of the commencement of any Blockage Period with respect to the Senior Indebtedness shall be, or be made, the basis for commencement of a second Blockage Period by the Representative of such Senior Indebtedness whether or not within a period of 360 consecutive days, unless such event of default shall have been cured or waived for a period of not less than 90 con- secutive days (it being acknowledged that any subsequent action, or any breach of any financial covenants for a period commencing after the date of commence- ment of such Blockage Period that, in either case, would give rise to an event of default pursuant to any provisions under which an event of default previ- ously existed or was continuing shall have ceased to existconstitute a new event of default for this purpose). Upon any payment or distribution of assets of the Company of any kind or character, no direct or indirect payment (whether in cash, property, property or securities, by set-off to creditors upon any to- tal or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securitiespartial liquidation, or in respect of any redemptiondissolution, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidationwinding up, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company assign- ment for the benefit of creditors, or
(4) any other marshalling creditors or marshaling of the assets of the CompanyCompany or in a bankruptcy, reorganization, insolvency, receivership or other similar pro- ceeding relating to the Company or its property, whether voluntary or involun- tary, all principal of, interest on and all other amounts due or to become due upon all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full in cash, or such pay- ment duly provided for to the satisfaction of the holders of Senior Indebted- ness, before any payment or distributiondistribution of any kind or character is made on account of any principal of, whether in cash, securities interest on or other propertyamounts owing in respect of the Securities, shall be made to any Holder or for the acquisition of any of the Securities for cash, property or otherwise. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Company rank- ing on a parity with the Securities, shall be entitled to be paid from the re- maining assets of the Company the amounts at the time due and owing on account thereof. Any of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, 63 whether in cash, securities property or other property (other than securities otherwise, shall be made on account of any Capi- tal Stock or any obligations of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least ranking junior to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding Securities and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in fullother obligations. In the event thatIf, notwithstanding the foregoing, any payment or distribution of any character or any securitycharac- ter, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment)property, shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment pay- ment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time In- debtedness then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities Secu- rities by any act or failure to act on the part of the Company. Senior Indebtedness Nothing con- tained herein shall impair, as between the Company and the Holders of Securi- ties of each Series, the obligation of the Company to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise per- mitted by applicable law or hereunder upon a Default or Event of Default here- under, all subject to the rights of the holders of the Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the Holders. Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property cash equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebt- edness, the Holders of Securities of each series Series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series Series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment pay- ment by the Company on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSeries.
Appears in 2 contracts
Samples: Subordinated Indenture (Coastal Corp), Subordinated Indenture (Coastal Corp)
Securities Subordinated to Senior Indebtedness. (1) The Company Company, for itself, its successors and assigns, covenants and agrees, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal ofof and premium, premium (if any) , and interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that Company.
(2) If (A) the Company shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (B) any other default shall occur with respect to Senior Indebtedness of the Company and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company and the Trustee by the holders of Senior Indebtedness of the Company or any trustee therefortherefore, unless and until such until, in either case, the default shall have has been cured or waived or shall have has ceased to existexists, or, any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or Securities other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up than those made in Capital Stock of the Company, voluntary Company (or involuntary, whether or not involving insolvency or bankruptcy proceedings,cash in lieu of fractional shares thereof).
(3) If any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property default occurs (other than securities a default descried in paragraph (2) of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof this Section 14.1) under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company Company, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or at the time outstanding in accordance with expiration of any applicable grace periods (a “Senior Nonmonetary Default”), then, upon the priorities then existing among such holders for application to the payment of all Senior Indebtedness of receipt by the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of and the Trustee of written notice thereof (a “Payment Blockage Notice”) from or any Holder to endorse or assign any such payment, distribution or security, each holder on behalf of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon specifying an election to prohibit such payment and other action by the Company in accordance with the following provisions of this paragraph (3), the Company may not make any payment in full or take any other action that would be prohibited by paragraph (2) of all this Section 14.1 during the period (the “Payment Blockage Period”) commencing on the date of receipt of such Payment Blockage Notice and ending on the earlier of (A) the date, if any, on which the holders of such Senior Indebtedness of or their representative notifies the Company, the Holders of Securities of each series shall be subrogated Trustee that such Senior Nonmonetary Default is cured or waived or ceases to all rights of any holders of Senior Indebtedness of the Company to receive any further payments exist or distributions applicable to the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (B) the 179th day after the date of receipt of such Payment Blockage Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Company until the indebtedness evidenced by may resume payments on the Securities of following such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsPayment Blockage Period.
Appears in 2 contracts
Samples: Indenture (Comstock Oil & Gas GP, LLC), Indenture (Comstock Resources Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees that anything in this Indenture to the contrary notwithstanding, the indebtedness evidenced by the Securities of each series is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein or, if so provided in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in SECTIONS 2.01 and 3.01 by or pursuant to which the form and terms of the Securities of such series were established, as and to the extent provided by the terms of the Securities of such series, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree that (a) likewise covenants and agrees to the payment of the principal of, premium (if any) subordination herein or therein provided and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities shall be bound by the Company, is subordinated, to the extent and in the manner provided in such Security provisions hereof or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenturethereof. Such subordination provisions This ARTICLE FIFTEEN shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of Senior Indebtedness, and such Senior Indebtedness holders are made obligees hereunder and any one or more of them may enforce such provisions. In No payment may be made by the Company on account of the principal of or any premium or interest on the Securities, or to acquire any of the Securities (including repurchases of Securities at the option of the Holders) for cash or property (other than Junior Securities), or on account of any redemption provisions of the Securities, (i) upon the maturity of any Senior Indebtedness of the Company by lapse of time, acceleration (unless waived) or otherwise, unless and until all principal of and any premium and interest on such Senior Indebtedness are first paid in full (or such payment is duly provided for) or (ii) in the event that the Company shall of a default in the payment of any principal of (or premium, if any) any premium or interest on any Senior Indebtedness of the Company when the same it becomes due and payable, whether at stated maturity or at a date fixed for prepayment or by declaration or otherwiseotherwise (a "PAYMENT DEFAULT"), then, upon written notice unless and until such Payment Default has been cured or waived or otherwise has ceased to exist. Upon (i) the happening of such an event of default to the Company by (other than a Payment Default) that permits the holders of Senior Indebtedness or any trustee therefortheir representative immediately to accelerate its maturity, and (ii) written notice of such event of default given to the Company and the Trustee by the holders of at least 33% in aggregate principal amount outstanding of such Senior Indebtedness or their representative (a "PAYMENT NOTICE"), then, unless and until such event of default shall have has been cured or waived or shall have otherwise has ceased to exist, no direct or indirect payment (in cash, property, securities, by set-set off or otherwise) shall may be made by or agreed to be made on behalf of the Company on account of the principal of or any premium or interest on the Securities, or to acquire or repurchase any of the Securities for cash or property, or on account of any redemption provisions of the Securities, or in any such case other than payments made with Junior Securities of the Company. Notwithstanding the foregoing, unless (i) the Senior Indebtedness in respect of any redemptionwhich such event of default exists has been declared due and payable in its entirety within 179 days after the Payment Notice is delivered as set forth above (the "PAYMENT BLOCKAGE PERIOD"), retirementand (ii) such declaration has not been rescinded or waived, purchase or at the end of the Payment Blockage Period, the Company shall be required to pay all sums not paid to the Holders of the Securities during the Payment Blockage Period due to the foregoing prohibitions and to resume all other acquisition of any of payments as and when due on the Securities. In Any number of Payment Notices may be given; PROVIDED, HOWEVER, that (i) not more than one Payment Notice shall be given within a period of any 360 consecutive days, and (ii) no event of default that existed upon the event of
date of such Payment Notice or the commencement of such Payment Blockage Period (1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3such event of default is on the same issue of Senior Indebtedness) shall be made the basis for the commencement of any assignment by other Payment Blockage Period. Upon any distribution of assets of the Company upon any dissolution, winding-up, liquidation or reorganization, whether voluntary of involuntary, in bankruptcy, insolvency, receivership or a similar proceeding or upon assignment for the benefit of creditors, or
creditors or any marshaling of assets or liabilities: (4i) the holders of all Senior Indebtedness shall first be entitled to receive payments in full (or have such payment duly provided for) before the Holders are entitled to receive any payment on account of the principal of or any premium or interest on the Securities (other than Junior Securities); and (ii) any other marshalling payment or distribution of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, property or securities (other than Junior Securities), to which the Holders or other propertythe Trustee on behalf of the Holders would be entitled (by set off or otherwise), except for the provisions of this ARTICLE FIFTEEN, shall be made to any Holder of any of paid by the Securities on account thereof. Any liquidating trustee or agent or other Person making such a payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered distribution directly to the holders of Senior Indebtedness or their representative to the extent necessary to make payment in full of the Company in accordance with the priorities then existing among all such holders until all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in fullSenior Indebtedness. In the event that, notwithstanding the foregoingforegoing provisions of this SECTION 15.01, any payment or distribution of any character or any security, whether in cash, securities or other property assets of the Company (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Junior Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), ) shall be received by the Trustee or any Holder in contravention of any of the terms hereof Holders at a time when such payment or distribution is prohibited by the provisions of this SECTION 15.01, then such payment or security distribution (subject to the provisions of SECTION 15.03 shall be received and held in trust by the Trustee or such Holders for the benefit ofof the holders of Senior Indebtedness, and shall be paid over or delivered and transferred toby the Trustee or such Holders, as the case may be, to the holders of Senior Indebtedness remaining unpaid or unprovided for, or their representative or representatives, or to the trustee or trustees under any indenture 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 Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders held or represented by each, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, unpaid to the extent necessary to pay or to provide for the payment of all such Senior Indebtedness in full after giving effect to any concurrent payment and distribution to the holders of such Senior Indebtedness. The failure to make a payment on account of principal of or any premium or interest on the Securities of any series by reason of any provision of this ARTICLE FIFTEEN shall not be construed as preventing the occurrence of an Event of Default. Nothing contained herein shall impair, as between the Company and the Holders of Securities of each series, the obligation of the Company Company, which is absolute and unconditional, to pay to such Holders the principal of and any premium and interest on such Securities as and when the same shall become due and payable in full. In the event of the failure of accordance with their terms or prevent the Trustee or any Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to endorse or assign any such payment, distribution or security, each holder the rights of the holders of the Senior Indebtedness of to receive cash, securities or other property otherwise payable or deliverable to the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyHolders. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such 68 payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders SECTION 15.01 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture. The securing of any obligations of the Company, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 2 contracts
Samples: Subordinated Indenture (Illinois Power Co), Subordinated Indenture (Illinois Power Co)
Securities Subordinated to Senior Indebtedness. The Company and each Holder of a Security, by his acceptance thereof, agree that (a) the Securities of any series which by their terms are subordinated and junior in right of payment of the principal of, premium (premium, if any) , and interest on and any Additional Amounts with respect to each and (all the Securities and (b) any other payment in respect of the foregoing, a "Payment or Distribution") on such Securities ("Junior Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, ") to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed, shall comply with the provisions of the Company when the same becomes due this Article 11, and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice each Holder of Junior Securities of such default to the Company series by the holders his acceptance thereof likewise agrees. A Payment or Distribution shall include any asset of Senior Indebtedness any kind or any trustee thereforcharacter, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in may consist of cash, securities or other property, securities, by set-off or otherwise) , and shall be made or agreed to be made on account of the principal of or interest on include, without limitation, any of the Securitiespurchase, or in respect of any redemption, retirement, purchase redemption or other acquisition of any Junior Securities of the Securities. In series or the event ofmaking of any deposit of funds or securities pursuant to this Indenture (including, without limitation, any deposit pursuant to Article 8 hereof).
(1b) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all The Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first continue to be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least Senior Indebtedness and entitled to the extent provided in benefit of these subordination provisions with respect irrespective of any amendment, modification or waiver of any term of any instrument relating to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness refinancing of the Company at Senior Indebtedness.
(c) All the time outstanding provisions of this Indenture and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Junior Securities of any series shall be paid or delivered directly subject to the holders provisions of Senior Indebtedness of the Company this Article 11 so far as they may be applicable thereto, except that nothing in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) this Article 11 shall have been paid in full. In the event thatapply to claims for, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred payments to, the holders Trustee under or pursuant to Section 7.07.
(d) No right of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities as herein provided shall at any time or in any way be affected or impaired by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Companyany Paying Agent, the Holders of the Junior Securities of each series shall be subrogated to all rights any series, the Trustee or the holders of the Senior Indebtedness, or by any noncompliance by the Company, any Paying Agent, the Holders of the Junior Securities of any holders series or the Trustee with any of the terms, provisions and covenants of the Securities or this Indenture, regardless of any knowledge thereof that any such holder of Senior Indebtedness may have or be otherwise charged with.
(e) In the event that the Junior Securities of any series are declared due and payable before their expressed maturity because of the Company to receive any further payments or distributions applicable to the Senior Indebtedness occurrence of a default hereunder, the Company until the indebtedness evidenced by the Securities will give prompt notice in writing of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed happening to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 2 contracts
Samples: Indenture (Assisted Living Concepts Inc), Indenture (Assisted Living Concepts Inc)
Securities Subordinated to Senior Indebtedness. The Company and each Holder With respect to the Securities to be issued under the Indenture on or after the date of this Fifth Supplemental Subordinated Indenture, unless any such Security is a Securityfurther issuance of Securities with the same terms as Securities originally issued prior to the date of this Fifth Supplemental Subordinated Indenture, by his acceptance thereof, agree that (a) the payment Section 13.01 of the principal ofIndenture, premium which reads as follows, shall be deleted in its entirety: “The Securities (if anyincluding any Coupons relating thereto) constitute the direct and interest on unconditional obligations of the Issuer and any Additional Amounts with respect are subordinated to each and all the Priority Claims. The obligations of the Issuer under the Securities and (b) any other payment in respect shall rank without preference or priority among themselves. The obligations of the Issuer under the terms of the Securities, including whether on account of the acquisition principal, interest or redemption of Securities by the Companyotherwise, is subordinated, are subordinated to the extent Priority Claims of the Issuer and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, will rank junior to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit claims of the holders of such Senior Indebtedness and any one or more all Priority Claims of them may enforce such provisions. In the Issuer in the event that of any Resolution Measure imposed on the Company shall default Issuer or in the payment event of any principal bankruptcy or insolvency (Insolvenzverfahren), suspension of payments, dissolution, liquidation (or premium, if anyLiquidation) or interest on any Senior Indebtedness winding up of the Company when Issuer, but will rank at least pari passu with the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice claims of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, all other subordinated indebtedness (it being understood that no direct or indirect payment (in cash, property, securities, by set-off or otherwisePriority Claims constitute subordinated obligations) shall be made or agreed to be made on account of the principal Issuer, except as otherwise provided by applicable law or the terms of or interest on any such other indebtedness, and in particular, they shall rank in priority to the claims of the Securities, or in respect holders of any redemption, retirement, purchase or other acquisition subordinated indebtedness of any of the Issuer that by its express terms is stated to rank junior to the Securities. In the event of
(1) of any Resolution Measure imposed on the Issuer or in the event of bankruptcy or insolvency, bankruptcysuspension of payments, receivershipdissolution, liquidation, reorganization, readjustment, composition liquidation or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the CompanyIssuer, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first no amounts will be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of payable under the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of until the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment claims of all Senior Indebtedness creditors of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall Priority Claims have been paid satisfied in full. In As used in this Section 5.01, Resolution Measure shall have the event thatmeaning set forth in the Third Supplemental Subordinated Indenture dated December 1, notwithstanding 2017. For the foregoingavoidance of doubt, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit ofconstitute Priority Claims. The Securities are subordinated to, and shall be paid over or delivered and transferred rank junior to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in fullIndebtedness. In the event of any Resolution Measure imposed on the failure Issuer or in the event of bankruptcy or insolvency, suspension of payments, dissolution, liquidation or winding up of the Trustee or any Holder to endorse or assign any such paymentIssuer, distribution or security, each holder no amounts will be payable under the Securities until the claims of all creditors of Senior Indebtedness have been satisfied in full.” and shall be replaced with the following: “The Securities (including any Coupons relating thereto) constitute the direct and unconditional obligations of the Company is hereby irrevocably authorized Issuer and are subordinated to endorse the Priority Claims. The obligations of the Issuer under the Securities shall rank without preference or assign priority among themselves. The obligations of the same. No present Issuer under the terms of the Securities, whether on account of principal, interest or future holder otherwise, are subordinated to the Priority Claims of the Issuer and will rank junior to the claims of the holders of all Priority Claims of the Issuer in the event any Resolution Measures are imposed on the Issuer or in the event of bankruptcy or insolvency (Insolvenzverfahren), suspension of payments, dissolution, liquidation (Liquidation) or winding up of the Issuer, but will rank at least pari passu with the claims of the holders of all other subordinated indebtedness that from time to time constitutes own funds within the meaning of the CRR (it being understood that no Priority Claims constitute such subordinated obligations) of the Issuer, except as otherwise provided by applicable law or the terms of any such other indebtedness, and in particular, they shall rank in priority to the claims of the holders of any subordinated indebtedness of the Issuer that by its express terms is stated to rank junior to the Securities, except as otherwise provided by applicable law. In the event any Resolution Measures are imposed on the Issuer or in the event of bankruptcy or insolvency, suspension of payments, dissolution, liquidation or winding up of the Issuer, no amounts will be payable under the Securities until the claims of all creditors of Priority Claims have been satisfied in full. As used in this Section 13.01, Resolution Measure shall have the meaning set forth in the Third Supplemental Subordinated Indenture dated December 1, 2017. For the avoidance of doubt, Senior Indebtedness shall constitute Priority Claims. The Securities are subordinated to, and shall rank junior to, Senior Indebtedness. In the event any Resolution Measures are imposed on the Issuer or in the event of bankruptcy or insolvency, suspension of payments, dissolution, liquidation or winding up of the Company shall Issuer, no amounts will be prejudiced in the right to enforce subordination of the indebtedness evidenced by payable under the Securities by any act or failure to act on until the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full claims of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders creditors of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid satisfied in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.”
Appears in 2 contracts
Samples: Fifth Supplemental Subordinated Indenture (Deutsche Bank Aktiengesellschaft), Fifth Supplemental Subordinated Indenture (Deutsche Bank Aktiengesellschaft)
Securities Subordinated to Senior Indebtedness. The Company Company, for itself and its successors, and each Holder of a SecurityHolder, by his or her acceptance thereofof Securities, agree agrees that (a) the payment of the principal of, premium (if any) Principal of and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedthis Article 11, to the prior right of payment in full to all present and future Senior Indebtedness, and that these subordination provisions are for the benefit of all the holders of Senior Indebtedness. The provisions of this Article 11 are for the benefit of the holders of the Senior Indebtedness specified from time to time (and their successors and assigns) and shall be enforceable directly by them and their respective representatives directly against the Company, the Trustee and the Holders (and their successors and assigns). The provisions of this Article 11 shall be a continuing agreement and shall be irrevocable and shall remain in such Security full force and effect until payment in the full of the Senior Indebtedness in cash or in such supplemental indenture. Such subordination provisions cash equivalents, and shall constitute a continuing and irrevocable offer to all Persons who, in reliance upon such provisions, who become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of Indebtedness (whether such Senior Indebtedness and any one was created or more of them may enforce such provisions. In acquired before or after the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any issuance of the Securities), or in respect each of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding which holders shall be deemed for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all purposes hereof to have acquired Senior Indebtedness in reliance upon the provisions of the Company (including any interest thereon accruing after this Article 11. The provision of this Article 11 shall survive the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities reorganization or other property, shall be made proceedings with respect to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan Person and the discharge of any claim in connection with such reorganization or readjustment other proceedings, including, without limitation, the payment discharge of which is subordinate, at least to any Senior Indebtedness. The holders of the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness and their respective representatives are hereby authorized to demand specific performance of the Company provisions of this Article 11 at the any time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of when the Company or any other corporation provided for by Holder shall have failed to comply with any provision of this Article 11 applicable to it, and the Company and each Holder hereby irrevocably waives any defense based on the adequacy of a plan of reorganization or readjustment the payment of which are subordinate, remedy at least law that might be asserted as a bar to the extent provided remedy of specific performance hereof in these subordination provisions with respect to the indebtedness evidenced any action brought therefor by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionstheir respective representatives.
Appears in 2 contracts
Samples: Subordinated Indenture (Credit Suisse Group), Subordinated Indenture (Credit Suisse Group)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees that anything in this Indenture to the contrary notwithstanding, the indebtedness evidenced by the Securities of each series is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein or, if so provided in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Sections 201 and 301 by or pursuant to which the form and terms of the Securities of such series were established, as and to the extent provided by the terms of the Securities of such series, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree that (a) likewise covenants and agrees to the payment of the principal of, premium (if any) subordination herein or therein provided and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities shall be bound by the Company, is subordinated, to the extent and in the manner provided in such Security provisions hereof or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenturethereof. Such subordination provisions This Article Sixteen shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of Senior Indebtedness, and such Senior Indebtedness holders are made obligees hereunder and any one or more of them may enforce such provisions. In the event that No payment may be made by the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or any premium or interest on the Securities, or to acquire any of the Securities (including repurchases of Securities at the option of the Holders) for cash or property (other than Junior Securities), or on account of any redemption provisions of the Securities, or in respect (i) upon the maturity of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company by lapse of time, acceleration (including unless waived) or otherwise, unless and until all principal of and any premium and interest thereon accruing on such Senior Indebtedness are first paid in full (or such payment Upon (i) the happening of an event of default (other than a Payment Default) that permits the holders of Senior Indebtedness or their representative immediately to accelerate its maturity and (ii) written notice of such event of default given to the Company and the Trustee by the holders of at least 25% in aggregate principal amount outstanding of such Senior Indebtedness or their representative (a "Payment Notice"), then, unless and until such event of default has been cured or waived or otherwise has ceased to exist, no payment (by set off or otherwise) may be made by or on behalf of the Company on account of the principal of or any premium or interest on the Securities, or to acquire or repurchase any of the Securities for cash or property, or on account of any redemption provisions of the Securities, in any such case other than payments made with Junior Securities of the Company. Notwithstanding the foregoing, unless (i) the Senior Indebtedness in respect of which such event of default exists has been declared due and payable in its entirety within 179 days after the Payment Notice is delivered as set forth above (the "Payment Blockage Period"), and (ii) such declaration has not been rescinded or waived, at the end of the Payment Blockage Period, the Company shall be required to pay all sums not paid to the Holders of the Securities during the Payment Blockage Period due to the foregoing prohibitions and to resume all other payments as and when due on the Securities. Any number of Payment Notices may be given; provided, however, that (i) not more than one Payment Notice shall be given within a period of any 360 consecutive days and (ii) no event of default that existed upon the date of such Payment Notice or the commencement of such Payment Blockage Period (whether or not such event of default is on the same issue of Senior Indebtedness) shall be made the basis for the commencement of any such proceedingsother Payment Blockage Period. Upon any distribution of assets of the Company upon any dissolution, winding-up, liquidation or reorganization of the Company, whether voluntary of involuntary, in bankruptcy, insolvency, receivership or a similar proceeding or upon assignment for the benefit of creditors or any marshaling of assets or liabilities: (i) the holders of all Senior Indebtedness shall first be paid entitled to receive payments in full (or have such payment duly provided for) before the Holders are entitled to receive any payment on account of the principal of or any premium or interest on the Securities (other than Junior Securities); and (ii) any payment or distributiondistribution of assets of the Company of any kind or character, whether in cash, property or securities (other than Junior Securities), to which the Holders or other propertythe Trustee on behalf of the Holders would be entitled (by set off or otherwise), except for the provisions of this Article Sixteen, shall be made to any Holder of any of paid by the Securities on account thereof. Any liquidating trustee or agent or other Person making such a payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered distribution directly to the holders of Senior Indebtedness or their representative to the extent necessary to make payment in full of the Company in accordance with the priorities then existing among all such holders until all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in fullSenior Indebtedness. In the event that, notwithstanding the foregoingforegoing provisions of this Section 1601, any payment or distribution of any character or any security, whether in cash, securities or other property assets of the Company (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Junior Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), ) shall be received by the Trustee or any Holder in contravention of any of the terms hereof Holders at a time when such payment or distribution is prohibited by the provisions of this Section 1601, then such payment or security shall be received distribution (subject to the provisions of Sectxxx 0000 -00- 00 xxxxx xx xxxeived and held in trust by the Trustee or such Holders for the benefit ofof the holders of Senior Indebtedness, and shall be paid over or delivered and transferred toby the Trustee or such Holders, as the case may be, to the holders of Senior Indebtedness remaining unpaid or unprovided for or their representative or representatives, or to the trustee or trustees under any indenture 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 Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders held or represented by each, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, unpaid to the extent necessary to pay or to provide for the payment of all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal after giving effect to the amount of such Senior Indebtedness of the Company then outstanding. Upon the any concurrent payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed distribution to the holders of such Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 2 contracts
Samples: Subordinated Indenture (Newfield Exploration Co /De/), Subordinated Indenture (Newfield Financial Trust Ii)
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness but the Securities shall in all respects rank pari passu with all other Senior Subordinated Indebtedness of the Issuer. The Securities shall rank senior to all existing and any one or more future Indebtedness of them may enforce such provisions. In the event Issuer that is neither Senior Indebtedness nor Senior Subordinated Indebtedness and only Indebtedness of the Company Issuer that is Senior Indebtedness shall rank senior to the Securities in accordance with the provisions set forth herein.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company Issuer and the Trustee by the holders of Senior Indebtedness or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived waived, or shall have has ceased to exist, or any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the SecuritiesSecurities other than those made in capital stock of the Issuer (or cash in lieu of fractional shares thereof).
(c) If any default (other than a default described in paragraph (b) of this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a “Senior Nonmonetary Default”), then, upon the receipt by the Issuer and the Trustee of written notice thereof (a “Payment Notice”) from or on behalf of holders of not less than 25% in aggregate principal amount of the Senior Indebtedness outstanding specifying an election to prohibit such payment and other action by the Issuer in accordance with the following provisions of this paragraph (c), the Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) of this Section 13.1 during the period (the “Payment Blockage Period”) commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 120th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Issuer may resume payments on the Securities following such Payment Blockage Period. In no event shall a Payment Blockage Period extend beyond 120 days from the date of the receipt by the Trustee of the Payment Notice (the “Initial Period”). Any number of additional Payment Blockage Periods may be commenced during the Initial Period; provided, however, that no such additional period shall extend beyond the Initial Period. After the expiration of the Initial Period, no Payment Blockage Period may be commenced on the basis of a Senior Nonmonetary Default on the Senior Indebtedness which was the basis of a Payment Blockage Period commenced during the Initial Period until at least 270 consecutive days have elapsed from the last day of the Initial Period. No Senior Nonmonetary Default with respect to Senior Indebtedness which existed or was continuing on the date of the commencement of any Payment Blockage Period and of which the applicable holder(s) of Senior Indebtedness are aware shall be, or can be made, the basis for the commencement of a second Payment Blockage Period whether or not within a period of 270 consecutive days unless such event ofof default shall have been cured or waived for a period of not less than 90 consecutive days.
(1d) If (i) (A) without the consent of the Issuer, a receiver, conservator, liquidator or trustee of the Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Code), and is not dismissed within 60 days after such filing; or (ii) the Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of debt, dissolution, liquidation or other relief with respect to itself or its debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Code) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails generally to, or cannot, pay its creditors debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyIssuer takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), adjustment) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Issuer ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Issuer the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred to, to the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyIssuer or any Holder of Securities. Nothing contained herein shall impair, as between the Issuer and the Holders of Securities of each series, the obligation of the Issuer to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of to remove cash, securities or other property otherwise payable or deliverable to the Company Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company Issuer and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company Issuer in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 2 contracts
Samples: Indenture (Hovnanian Enterprises Inc), Indenture (Hovnanian Enterprises Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees that anything in this Indenture to the contrary notwithstanding, the indebtedness evidenced by the Securities of each series is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein or, if so provided in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Sections 201 and 301 by or pursuant to which the form and terms of the Securities of such series were established, as and to the extent provided by the terms of the Securities of such series, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree that (a) likewise covenants and agrees to the payment of the principal of, premium (if any) subordination herein or therein provided and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities shall be bound by the Company, is subordinated, to the extent and in the manner provided in such Security provisions hereof or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenturethereof. Such subordination provisions This Article Sixteen shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of Senior Indebtedness, and such Senior Indebtedness holders are made obligees hereunder and any one or more of them may enforce such provisions. In No payment may be made by the Company on account of the principal of or any premium or interest on the Securities, or to acquire any of the Securities (including repurchases of Securities at the option of the Holders) for cash or property (other than Junior Securities), or on account of any redemption provisions of the Securities, (i) upon the maturity of any Senior Indebtedness of the Company by lapse of time, acceleration (unless waived) or otherwise, unless and until all principal of and any premium and interest on such Senior Indebtedness are first paid in full (or such payment is duly provided for) or (ii) in the event that the Company shall of default in the payment of any principal of (or premium, if any) any premium or interest on any Senior Indebtedness of the Company when the same it becomes due and payable, whether at stated maturity or at a date fixed for prepayment or by declaration or otherwiseotherwise (a "Payment Default"), then, upon written notice unless and until such Payment Default has been cured or waived or otherwise has ceased to exist. Upon (i) the happening of such an event of default to the Company by (other than a Payment Default) that permits the holders of Senior Indebtedness or any trustee therefortheir representative immediately to accelerate its maturity and (ii) written notice of such event of default given to the Company and the Trustee by the holders of at least 25% in aggregate principal amount outstanding of such Senior Indebtedness or their representative (a "Payment Notice"), then, unless and until such event of default shall have has been cured or waived or shall have otherwise has ceased to exist, no direct or indirect payment (in cash, property, securities, by set-set off or otherwise) shall may be made by or agreed to be made on behalf of the Company on account of the principal of or any premium or interest on the Securities, or to acquire or repurchase any of the Securities for cash or property, or on account of any redemption provisions of the Securities, or in any such case other than payments made with Junior Securities of the Company. Notwithstanding the foregoing, unless (i) the Senior Indebtedness in respect of any redemptionwhich such event of default exists has been declared due and payable in its entirety within 179 days after the Payment Notice is delivered as set forth above (the "Payment Blockage Period"), retirementand (ii) such declaration has not been rescinded or waived, purchase or at the end of the Payment Blockage Period, the Company shall be required to pay all sums not paid to the Holders of the Securities during the Payment Blockage Period due to the foregoing prohibitions and to resume all other acquisition of any of payments as and when due on the Securities. In Any number of Payment Notices may be given; provided, however, that (i) not more than one Payment Notice shall be given within a period of any 360 consecutive days and (ii) no event of default that existed upon the date of such Payment Notice or the commencement of such Payment Blockage Period (whether or not such event of
(1of default is on the same issue of Senior Indebtedness) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to shall be made the Company, its creditors or its property,
(2) any proceeding basis for the liquidationcommencement of any other Payment Blockage Period. Upon any distribution of assets of the Company upon any dissolution, dissolution winding-up, liquidation or other winding up reorganization of the Company, whether voluntary or of involuntary, whether in bankruptcy, insolvency, receivership or not involving insolvency a similar proceeding or bankruptcy proceedings,
(3) any upon assignment by the Company for the benefit of creditors, or
creditors or any marshaling of assets or liabilities: (4i) the holders of all Senior Indebtedness shall first be entitled to receive payments in full (or have such payment duly provided for) before the Holders are entitled to receive any payment on account of the principal of or any premium or interest on the Securities (other than Junior Securities); and (ii) any other marshalling payment or distribution of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, property or securities (other than Junior Securities), to which the Holders or other propertythe Trustee on behalf of the Holders would be entitled (by set off or otherwise), except for the provisions of this Article Sixteen, shall be made to any Holder of any of paid by the Securities on account thereof. Any liquidating trustee or agent or other Person making such a payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered distribution directly to the holders of Senior Indebtedness or their representative to the extent necessary to make payment in full of the Company in accordance with the priorities then existing among all such holders until all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in fullSenior Indebtedness. In the event that, notwithstanding the foregoingforegoing provisions of this Section 1601, any payment or distribution of any character or any security, whether in cash, securities or other property assets of the Company (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Junior Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), ) shall be received by the Trustee or any Holder in contravention of any of the terms hereof Holders at a time when such payment or distribution is prohibited by the provisions of this Section 1601, then such payment or security distribution (subject to the provisions of Section 1603 shall be received and held in trust by the Trustee or such Holders for the benefit ofof the holders of Senior Indebtedness, and shall be paid over or delivered and transferred toby the Trustee or such Holders, as the case may be, to the holders of Senior Indebtedness remaining unpaid or unprovided for or their representative or representatives, or to the trustee or trustees under any indenture 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 Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders held or represented by each, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, unpaid to the extent necessary to pay or to provide for the payment of all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal after giving effect to the amount of such Senior Indebtedness of the Company then outstanding. Upon the any concurrent payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed distribution to the holders of such Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 2 contracts
Samples: Subordinated Indenture (Dynegy Capital Trust Ii), Subordinated Indenture (Dynegy Capital Trust Iii)
Securities Subordinated to Senior Indebtedness. The Company Issuer covenants and agrees, and each Holder of a Security, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal of, premium (if any) of and interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event (a) of any insolvency or bankruptcy proceedings or any receivership, liquidation, reorganization or other similar proceedings in respect of the Issuer or a substantial part of its property, or of any proceedings for liquidation, dissolution or other winding up of the Issuer, whether or not involving insolvency or bankruptcy, (b) subject to the provisions of Section 14.02, that (x) a default shall have occurred with respect to the Company payment of principal of or interest on or other monetary amounts due and payable on any Senior Indebtedness, or (y) there shall have occurred an event of default (other than a default in the payment of principal or interest or other monetary amounts due and payable) in respect of any principal Senior Indebtedness, as defined therein or in the instrument under which the same is outstanding, permitting the holder or holders thereof to accelerate the maturity thereof (with notice or lapse of (time, or premiumboth), and such event of default shall have continued beyond the period of grace, if any, in respect thereof, and, in the cases of subclauses (x) or interest on any Senior Indebtedness and (y) of the Company when the same becomes due and payablethis clause (b), whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders or event of Senior Indebtedness or any trustee therefor, unless and until such default shall not have been cured or waived or shall not have ceased to exist, no direct or indirect (c) that the principal of and accrued interest on the Securities of any series shall have been declared due and payable pursuant to Section 5.01 and such declaration shall not have been rescinded and annulled as provided in Section 5.02, then in any such case:
(i) the holders of all Senior Indebtedness shall first be entitled to receive payment (in cashof the full amount due thereon, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money’s worth, before the Holders of any of the Securities are entitled to be made receive a payment on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, including, without limitation, any payments made pursuant to Article XI or Article XII;
(ii) any payment by, or distribution of assets of, the payment Issuer of all Senior Indebtedness any kind or character, whether in cash, property or securities, to which the Holders of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities or the Trustee would be entitled but for the provisions of any series this Article shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the holders of the Company indebtedness evidenced by the Securities or to the Trustee under this instrument; and
(including any interest thereon accruing after the commencement of any such proceedingsiii) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Issuer of any character kind or any securitycharacter, whether in cash, securities property or other property (other than securities securities, in respect of principal of or interest on the Securities or in connection with any repurchase by the Issuer of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention the Holders of any of the terms hereof Securities before all Senior Indebtedness is paid in full, or provision made for such payment in money or money’s worth, such payment or distribution in respect of principal of or security shall be received interest on the Securities or in trust for connection with any repurchase by the benefit of, and Issuer of the Securities shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness of or their representative or representatives or to the Company at the time outstanding in accordance with the priorities then existing among trustee or trustees under any indenture under which any instruments evidencing any such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness Indebtedness. Notwithstanding the foregoing, at any time after the 91st day following the date of deposit of cash, or in the Companycase of Securities payable only in Dollars, shallU.S. Government Obligations, as between pursuant to Section 13.02 (provided all other conditions set out in such Section shall have been satisfied) the Company funds so deposited and its creditors other than the any interest thereon will not be subject to any rights of holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of those arising under this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsArticle XIV.
Appears in 2 contracts
Samples: Share Repurchase Agreement (American International Group Inc), Junior Subordinated Indenture (AerCap Global Aviation Trust)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree that (a) the payment of the principal oflikewise covenants and agrees, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinatedthat, to the extent and in the manner provided hereinafter set forth in such Security this Article 10, the indebtedness represented by the Securities and all Payments or Distributions in Respect of the supplemental indenture pursuant to which such Security is issued, Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding on the date of this Indenture or thereafter incurred. If at any time following the payment of any amount to a holder of Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer with respect to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, such payment is rescinded or must otherwise be returned by such holder upon the insolvency, bankruptcy, reorganization, dissolution or liquidation of the Company or any other Person or otherwise, and is so rescinded or returned to the party or parties making such payment, such Senior Indebtedness shall be reinstated to the extent of such payment and the provisions of this Article 10 shall be applicable as if such payment were never made. The provisions of this Article 10 are made for the benefit of the holders of such Senior Indebtedness Indebtedness, and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any each Holder of the Securities, or in respect of any redemption, retirement, by his purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company hereby agrees for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the that his Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal are subject to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsArticle 10.
Appears in 2 contracts
Samples: Indenture (Integrated Health Services Inc), Indenture (Integrated Health Services Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is thereof are hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. :
(a) In the event that the Company shall default in the payment of any principal of (insolvency or premiumbankruptcy proceedings, if any) or interest on and any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition arrangement or other similar proceeding relating proceedings in connection therewith, relative to the Company, its creditors or its property,
(2) and in the event of any proceeding proceedings for the voluntary liquidation, dissolution or other winding winding-up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditorsbankruptcy, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal of, and premium and interest on all Senior Indebtedness, or provision shall be made for such payment, before the Holders of the Company in accordance with Securities or any Coupons are entitled to receive any payment on account of principal, premium, if any, interest or Additional Amounts upon the priorities then existing among such Securities, and to that end the holders until all of Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid be entitled to receive for application in full. In the event that, notwithstanding the foregoing, payment thereof any payment or distribution of any character kind or any securitycharacter, whether in cashcash or property or securities, securities which may be payable or other property (other than securities deliverable in any such proceedings in respect of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and Securities after giving effect to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such concurrent payment or distribution in respect of such Senior Indebtedness;
(b) In the event that the Securities of any series are declared or security otherwise become due and payable before their expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (a) or the following clause (c) shall not be received in trust for the benefit of, and shall be paid over or delivered and transferred toapplicable), the holders of the Senior Indebtedness of the Company due and payable at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount so become due and payable because of such Senior Indebtedness occurrence of the Company then outstanding. Upon the an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 5.2, be entitled to receive payment in full of all principal of, and premium and interest on all such Senior Indebtedness of the CompanyIndebtedness, or provision shall be made for such payment, before the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed are entitled to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a receive any payment by the Company on account of Senior Indebtedness of the Companyprincipal of, premium, if any, or interest and not Additional Amounts on account of the Securities of such series. The Trustee and ; provided, that nothing herein shall prevent the Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company Securities from seeking any remedy allowed at law or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.equity so
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree whether upon original issue or upon transfer, assignment or exchange thereof, likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, thereof is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(a) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on all Senior Indebtedness specified before the Holders of the Securities are entitled to receive any payment on account of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such Security proceedings in respect of the Securities after giving effect to any concurrent payment or distribution in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any respect of such Senior Indebtedness;
(b) In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (a) or the following clause (c) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such Security so becomes due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 502, be entitled to receive payment in full of all principal of, and premium and interest on, all such provisions Senior Indebtedness before the Holders of the Securities of such series are made entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(c) In the benefit of event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one or more to accelerate the maturity thereof, if either
(1) notice of them may enforce such provisions. In the event that default, in writing, shall have been given to the Company and to the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal or interest and within 90 days in the case of any principal other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 1501(c) in any twelve months period; or
(or 2) judicial proceedings shall be pending in respect of such default, the Holders of the Securities and the Trustee, for the benefit of the Holders of the Securities, for their benefit shall not be entitled to receive any payment on account of principal, premium, if any) , or interest on and Additional Amounts thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on, such Senior Indebtedness shall have been made or provided for. The Trustee, forthwith upon receipt of any notice received by it pursuant to this Section 1501(c), shall, as soon as practicable, send a notice thereof to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security Register. In case despite the foregoing provisions, any payment or distribution shall, in any such event, be paid or delivered to any Holder of the Company when the same becomes due and payable, whether at maturity Securities or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by Trustee, for the benefit of the Holders of the Securities, before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid and delivered to the holders of Senior Indebtedness (or any trustee therefor, unless and their duly authorized representatives) until such default all Senior Indebtedness shall have been cured or waived or paid in full. The Company shall have ceased give written notice to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustmentarrangement or similar proceeding relative to the Company within the meaning of this Section 1501. Upon any payment or distribution of assets of the Company referred to in this Article Fifteen, composition the Trustee, subject to the provisions of Section 315(a) through 315(d) of the Trust Indenture Act, and the Holders of the Securities shall be entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other similar proceeding relating liquidating agent making such payment or distribution, delivered to the CompanyTrustee or to the Holders of Securities, its creditors or its property,
(2) any proceeding for the liquidationpurpose of ascertaining the persons entitled to participate in such distribution, dissolution or the holders of the Senior Indebtedness and other winding up indebtedness of the Company, voluntary the amount thereof or involuntarypayable thereon, whether the amount or not involving insolvency amounts paid or bankruptcy proceedings,
(3) any assignment distributed thereon and all other facts pertinent thereto or to this Article Fifteen. The Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by the Company for the benefit a person representing himself to be a holder of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness (or a trustee or agent on behalf of the Company such holder) to establish that such notice has been given by a holder of Senior Indebtedness (including any interest thereon accruing after the commencement or a trustee or agent on behalf of any such proceedings) shall first be paid holder). In the event that the Trustee determines, in full before good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 1501, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, whether in cashand as to other facts pertinent to the rights of such person under this Section 1501, securities 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. For purposes of this Article, the words, “cash or other property, property or securities” shall not be made deemed to any Holder include shares of any stock or warrants to purchase shares of stock of the Securities on account thereof. Any payment Company as reorganized or distributionreadjusted, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of arrangement, reorganization or readjustment readjustment, the payment of which is subordinate, subordinated (at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly such) to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of which may at the Companytime be outstanding; provided, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any such arrangement, reorganization or readjustment, and (ii) the rights of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness are not, without the consent of such holders, altered by such arrangement, reorganization or readjustment. The consolidation of the Company at with, or the time outstanding, be necessary or appropriate to assure the effectiveness merger of the subordination effected by these provisionsCompany into, another corporation or the liquidation or dissolution of the Company following the sale, conveyance or transfer of all or substantially all of its property and assets to another corporation upon the terms and conditions provided in Article 8 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section if such other corporation shall, as a part of such consolidation, merger, sale, conveyance or transfer, comply with the conditions stated in Article 8. This Section shall be subject to the further provisions of Section 1506.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company Issuer covenants and agrees, and each Holder of a Securitythe Securities of any series, by his his, her or its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) ), interest, if any, on, and interest on and any Additional Amounts with Amounts, if any, payable in respect to of each and all of the Securities and (b) of any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, series is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness. Notwithstanding anything contained herein to the contrary, and such provisions are made payments from money or the proceeds of U.S. Government Obligations held in trust under Article 8 by the Trustee for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or and interest on the Securities of any series shall not be subordinated to the prior payment of any Senior Indebtedness of the Issuer or subject to the restrictions set forth in this Article 13, and none of the Holders shall be obligated to pay over any such amount to the Issuer or any holder of Senior Indebtedness of the Issuer or any other creditor of the Issuer. In the event (a) of any distribution of assets of the Issuer upon any dissolution, winding up, liquidation or reorganization of the Issuer, whether in bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Issuer or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the assets of the Company when which complies with the same becomes requirements of Article 5, (b) that a default shall have occurred and be continuing with respect to the payment of principal of (and premium, if any), interest, if any, on, and Additional Amounts, if any, payable in respect of any Senior Indebtedness or (c) that the principal of the Securities of any series (or in the case of Original Issue Discount Securities, the portion of the principal amount thereof referred to in Section 6.02) shall have been declared due and payable pursuant to Section 6.02 and such declaration shall not have been rescinded and annulled as provided in Section 6.02, then:
(1) in a circumstance described in the foregoing clause (a) or (b), the holders of all Senior Indebtedness, and in the circumstance described in the foregoing clause (c), the holders of all Senior Indebtedness outstanding at the time the principal of such Securities of any series (or in the case of Original Issue Discount Securities, such portion of the principal amount) shall have been so declared due and payable, whether at maturity shall first be entitled to receive payment of the full amount due thereon in respect of principal of (and premium, if any), interest, if any, on, and Additional Amounts, if any, or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money’s worth, before the Holders of any of the Securities of any series are entitled to be made receive any payment on account of the principal of or interest on any of the Securities(and premium, or if any), interest, if any, on, and Additional Amounts, if any, in respect of any redemption, retirement, purchase or other acquisition the indebtedness evidenced by the Securities of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,series;
(2) any proceeding for payment by, or distribution of assets of, the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement Issuer of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, property or securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer as reorganized or readjusted or securities of the Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions this Article 13 with respect to the indebtedness evidenced by the Securitiessecurities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at holders of the time outstanding and to any securities issued in respect thereof under any Senior Indebtedness are not altered by such plan of reorganization or readjustment), to which would otherwise (but for these subordination provisions) be payable or deliverable in respect the Holders of any of the Securities of any series would be entitled except for the provisions of this Article 13 shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of any of the Company (including any interest thereon accruing after the commencement Securities of any such proceedingsseries under this Indenture; and
(3) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Issuer of any character kind or any securitycharacter, whether in cash, property or securities or other property (other than securities of the Company Issuer as reorganized or readjusted or securities of the Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these subordination provisions this Article 13 with respect to the indebtedness evidenced by the SecuritiesSecurities of any series, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at the time outstanding and to any securities issued in respect thereof under any holders of Senior Indebtedness are not altered by such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention Holders of any of the terms hereof Securities of any series before all Senior Indebtedness is paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of the Company at the time outstanding in accordance with the priorities then existing among such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Samples: Indenture (BRMK Management, Corp.)
Securities Subordinated to Senior Indebtedness. The Company Except as otherwise specified as contemplated by Section 301 for any series of Securities, the Corporation covenants and agrees, and each Holder of a SecuritySecurity of any series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities of such series and the payment of the principal of, of and any premium (if any) and or interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, such series is subordinatedsubordinate, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in (as defined with respect to the Securities of such Security or in series); and (b) Senior Indebtedness (as defined with respect to the Securities of such supplemental indenture. Such subordination provisions series) shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to holdbe Senior Indebtedness with respect to the Securities of such series irrespective of any amendment, modification or waiver of any term of such Senior IndebtednessIndebtedness or extension or renewal of such Senior Indebtedness (other than any such amendment, modification or waiver that makes any such Senior Indebtedness subordinated or equal in right of payment to the Securities of such series). With respect to the Securities of each series (unless otherwise provided pursuant to Section 301 with respect to the Securities of such series), in the event (a) of any payment by, or distribution of assets of, the Corporation of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other similar proceedings, or (b) subject to the provisions of Section 1402, that (i) a default shall have occurred and be continuing with respect to the payment of principal, interest or any other monetary amounts due and payable on any Senior Indebtedness (as defined with respect to the Securities of such series) and such provisions are made for default shall have continued beyond the benefit period of grace, if any, specified in the instrument evidencing such Senior Indebtedness (and the Trustee shall have received written notice thereof from the Corporation or one or more holders of such Senior Indebtedness and or their representative or representatives or the trustee or trustees under any one indenture pursuant to which any such Senior Indebtedness may have been issued), or more of them may enforce such provisions. In (ii) the event that the Company shall default in the payment maturity of any principal of (or premium, if any) or interest on any such Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account accelerated because of the principal of or interest on any of the Securities, or a default in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness (and the Trustee shall have received written notice thereof from the Corporation or one or more holders of the Company then outstanding. Upon the payment in full of all such Senior Indebtedness of or their representative or representatives or the Company, the Holders of Securities of each series shall be subrogated trustee or trustees under any indenture pursuant to all rights of which any holders of such Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall may have been paid in fullissued), and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.then:
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to all Senior
(b) Subject to Section 13.4, if (i) the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company Issuer shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company Issuer by the holders of Senior Indebtedness or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived waived, and any such acceleration has been rescinded or shall have ceased to existsuch Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofIssuer (or cash in lieu of fractional shares thereof).
(1c) If any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property default (other than securities a default described in paragraph (b)) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced receipt by the Securities, to Issuer and the payment Trustee of all written notice thereof (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness of specifying an election to prohibit such payment and other action by the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company Issuer in accordance with the priorities then existing among such holders until all Senior Indebtedness following provisions of this paragraph, the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, Issuer may not make any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or take any other corporation provided for action that would be prohibited by a plan paragraph (b) above during the period (the "Payment Blockage Period") commencing on the date of reorganization or readjustment receipt of such Payment Notice and ending on the payment earlier of (i) the date, if any, on which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all which such Senior Indebtedness Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice unless the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder maturity of any Senior Indebtedness has been accelerated or a default of the Company shall be prejudiced type specified in the right to enforce subordination of the indebtedness evidenced by the Securities by any act Section 5.1(e) or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.5.1
Appears in 1 contract
Samples: Senior Subordinated Indenture (Belco Oil & Gas Corp)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree whether upon original issue or upon transfer, assignment or exchange thereof, likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, thereof is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(a) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on all Senior Indebtedness specified before the Holders of the Securities are entitled to receive any payment on account of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such Security proceedings in respect of the Securities after giving effect to any concurrent payment or distribution in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any respect of such Senior Indebtedness;
(b) In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (a) or the following clause (c) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such Security so becomes due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 502, be entitled to receive payment in full of all principal of, and premium and interest on, all such provisions Senior Indebtedness before the Holders of the Securities of such series are made entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(c) In the benefit of event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one or more to accelerate the maturity thereof, if either
(1) notice of them may enforce such provisions. In the event that default, in writing, shall have been given to the Company and to the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal or interest and within 90 days in the case of any principal other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 1501(c) in any twelve months period; or
(or 2) judicial proceedings shall be pending in respect of such default, the Holders of the Securities and the Trustee, for the benefit of the Holders of the Securities, for their benefit shall not be entitled to receive any payment on account of principal, premium, if any) , or interest on and Additional Amounts thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on, such Senior Indebtedness shall have been made or provided for. The Trustee, forthwith upon receipt of any notice received by it pursuant to this Section 1501(c), shall, as soon as practicable, send a notice thereof to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security Register. In case despite the foregoing provisions, any payment or distribution shall, in any such event, be paid or delivered to any Holder of the Company when the same becomes due and payable, whether at maturity Securities or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by Trustee, for the benefit of the Holders of the Securities, before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid and delivered to the holders of Senior Indebtedness (or any trustee therefor, unless and their duly authorized representatives) until such default all Senior Indebtedness shall have been cured or waived or paid in full. The Company shall have ceased give written notice to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustmentarrangement or similar proceeding relative to the Company within the meaning of this Section 1501. Upon any payment or distribution of assets of the Company referred to in this Article XV, composition the Trustee, subject to the provisions of Section 315(a) through 315(d) of the Trust Indenture Act, and the Holders of the Securities shall be entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other similar proceeding relating liquidating agent making such payment or distribution, delivered to the CompanyTrustee or to the Holders of Securities, its creditors or its property,
(2) any proceeding for the liquidationpurpose of ascertaining the persons entitled to participate in such distribution, dissolution or the holders of the Senior Indebtedness and other winding up indebtedness of the Company, voluntary the amount thereof or involuntarypayable thereon, whether the amount or not involving insolvency amounts paid or bankruptcy proceedings,
(3) any assignment distributed thereon and all other facts pertinent thereto or to this Article XV. The Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by the Company for the benefit a person representing himself to be a holder of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness (or a trustee or agent on behalf of the Company such holder) to establish that such notice has been given by a holder of Senior Indebtedness (including any interest thereon accruing after the commencement or a trustee or agent on behalf of any such proceedings) shall first be paid holder). In the event that the Trustee determines, in full before good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 1501, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, whether in cashand as to other facts pertinent to the rights of such person under this Section 1501, securities 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. For purposes of this Article, the words, “cash or other property, property or securities” shall not be made deemed to any Holder include shares of any stock or warrants to purchase shares of stock of the Securities on account thereof. Any payment Company as reorganized or distributionreadjusted, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of arrangement, reorganization or readjustment readjustment, the payment of which is subordinate, subordinated (at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly such) to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of which may at the Companytime be outstanding; provided, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any such arrangement, reorganization or readjustment, and (ii) the rights of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness are not, without the consent of such holders, altered by such arrangement, reorganization or readjustment. The consolidation of the Company at with, or the time outstanding, be necessary or appropriate to assure the effectiveness merger of the subordination effected by these provisionsCompany into, another corporation or the liquidation or dissolution of the Company following the sale, conveyance or transfer of all or substantially all of its property and assets to another corporation upon the terms and conditions provided in Article VIII shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section if such other corporation shall, as a part of such consolidation, merger, sale, conveyance or transfer, comply with the conditions stated in Article VIII. This Section shall be subject to the further provisions of Section 1506.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees that, anything in this Indenture or the Securities of any series to the contrary notwithstanding, the Indebtedness evidenced by the Securities of each series is subordinated and junior in right of payment to all Senior Indebtedness to the extent provided herein, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree that (a) whether upon original issue or upon transfer or assignment thereof, likewise covenants and agrees to the payment of the principal of, premium (if any) subordination herein provided and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities shall be bound by the Companyprovisions hereof. Subject to Section 13.4, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that if the Company shall default in the payment of any principal of (or premium, if any) or interest on or any Additional Amount payable in respect of any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-set off or otherwise) shall be made or agreed to be made on account of the principal of or of, interest on or Additional Amounts payable in respect of any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofCompany (or cash in lieu of fractional shares thereof) pursuant to Article XII or otherwise made in capital stock of the Company (or cash in lieu of fractional shares thereof).
(1a) any without the consent of the Company a court having jurisdiction shall enter an order for relief with respect to the Company under the Bankruptcy Laws or without the consent of the Company a court having jurisdiction shall enter a judgment, order or decree adjudging the Company a bankrupt or insolvent, or enter an order for relief for reorganization, arrangement, adjustment or composition of or in respect of the Company under the Bankruptcy Laws or applicable state insolvency law, or (b) the Company shall institute proceedings for entry of an order for relief with respect to the Company under the Bankruptcy Laws or for an adjudication of insolvency, bankruptcyor shall consent to the institution of bankruptcy or insolvency proceedings against it, receivershipor shall file a petition seeking, liquidation, or seek or consent to reorganization, readjustmentarrangement, composition or other similar proceeding relating relief under the Bankruptcy Laws or any applicable state law, or shall consent to the Companyfiling of such petition or to the appointment of a receiver, its creditors custodian, liquidator, assignee, trustee, sequestrator or similar official (other than a custodian pursuant to 8 Delaware Code (S) 226 or any similar statute under other state laws) in respect of the Company or of substantially all of its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company shall make a general assignment for the benefit of creditorscreditors as recognized under the Bankruptcy Laws, or
(4) any other marshalling of the assets of the Company, then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedingsproceedings and any Additional Amounts payable in respect thereof) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness Indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which ) that would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedingsproceedings and any Additional Amounts payable in respect thereof) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holder of the Securities, together with the holders of any obligation of the Company ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of, interest on and any Additional Amounts payable in respect of the Securities and such other obligations before any payment of other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Securities and such other obligations. If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness Indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder Nothing contained herein shall impair, as between the Company and the Holders of any Senior Indebtedness Securities of each series, the obligation of the Company shall be prejudiced in to pay to such Holders the right principal of, interest on or any Additional Amounts payable with respect to enforce subordination such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the indebtedness evidenced by the Securities by any act or failure to act on the part holders of the CompanySenior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the Holders. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which that otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, shall as between the Company and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture. The securing of any obligations of the Company, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Samples: Indenture (Kellwood Co)
Securities Subordinated to Senior Indebtedness. The Company and each Holder With respect to the Securities to be issued under the Indenture on or after the date of this Third Supplemental Subordinated Indenture, unless any such Security is a Securityfurther issuance of Securities with the same terms as Securities originally issued prior to the date of this Third Supplemental Subordinated Indenture, by his acceptance thereof, agree that (a) the payment Section 13.01 of the principal ofIndenture, premium which reads as follows, shall be deleted in its entirety: “The Securities (if anyincluding any Coupons relating thereto) constitute the direct, unconditional and interest on and any Additional Amounts with respect to each and all unsecured obligations of the Securities and (b) any other payment in respect Issuer ranking without preference or priority among themselves. The obligations of the Issuer under the terms of the Securities, including whether on account of the acquisition principal, interest or redemption of Securities by the Companyotherwise, is subordinated, are subordinated to the extent Senior Indebtedness of the Issuer and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, will rank junior to the prior payment in full claims of the holders of all Senior Indebtedness specified of the Issuer in such Security the event of bankruptcy or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons whoinsolvency (Insolvenzverfahren), in reliance upon such provisionssuspension of payments, become holders ofdissolution, liquidation (Liquidation) or continue to holdwinding up of the Issuer, any of such Senior Indebtedness, and such provisions are made for but will rank at least pari passu with the benefit claims of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness all other subordinated indebtedness of the Company when the same becomes due and payableIssuer, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default except that it shall rank in priority to the Company by claims of the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account subordinated indebtedness of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of Issuer that by its express terms is stated to rank junior to the Securities. In the event of
(1) any of bankruptcy or insolvency, bankruptcysuspension of payments, receivershipdissolution, liquidation, reorganization, readjustment, composition liquidation or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the CompanyIssuer, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by no amounts will be payable under the Company for Securities until the benefit claims of creditors, or
(4) any other marshalling all creditors of the assets of the Company, all Senior Indebtedness of have been satisfied in full.” and shall be replaced with the Company following: “The Securities (including any Coupons relating thereto) constitute the direct and unconditional obligations of the Issuer and are subordinated to the Priority Claims. The obligations of the Issuer under the Securities shall rank without preference or priority among themselves. The obligations of the Issuer under the terms of the Securities, whether on account of principal, interest thereon accruing after or otherwise, are subordinated to the commencement Priority Claims of the Issuer and will rank junior to the claims of the holders of all Priority Claims of the Issuer in the event of any Resolution Measure imposed on the Issuer or in the event of bankruptcy or insolvency (Insolvenzverfahren), suspension of payments, dissolution, liquidation (Liquidation) or winding up of the Issuer, but will rank at least pari passu with the claims of the holders of all other subordinated indebtedness (it being understood that no Priority Claims constitute subordinated obligations) of the Issuer, except as otherwise provided by applicable law or the terms of any such proceedings) other indebtedness, and in particular, they shall first be paid rank in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least priority to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment claims of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness any subordinated indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for Issuer that by a plan of reorganization or readjustment the payment of which are subordinate, at least its express terms is stated to rank junior to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of any Resolution Measure imposed on the failure Issuer or in the event of bankruptcy or insolvency, suspension of payments, dissolution, liquidation or winding up of the Trustee Issuer, no amounts will be payable under the Securities until the claims of all creditors of Priority Claims have been satisfied in full. As used in this Section 5.01, Resolution Measure shall have the meaning set forth in the Third Supplemental Subordinated Indenture dated December 1, 2017. For the avoidance of doubt, Senior Indebtedness shall constitute Priority Claims. The Securities are subordinated to, and shall rank junior to, Senior Indebtedness. In the event of any Resolution Measure imposed on the Issuer or any Holder to endorse in the event of bankruptcy or assign any such paymentinsolvency, distribution suspension of payments, dissolution, liquidation or securitywinding up of the Issuer, each holder no amounts will be payable under the Securities until the claims of all creditors of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid satisfied in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.”
Appears in 1 contract
Samples: Third Supplemental Subordinated Indenture (Deutsche Bank Aktiengesellschaft)
Securities Subordinated to Senior Indebtedness. The Company and each Holder of a Security, by his acceptance thereof, agree that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedthis Article, to the prior payment in full of all Senior Indebtedness specified in such Security of the Company, whether outstanding at the date of this Indenture or in such supplemental indenture. Such thereafter created, incurred, assumed or guaranteed, and that these subordination provisions are for the benefit of the holders of Senior Indebtedness. This Article shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of Senior Indebtedness, and such Senior Indebtedness holders are made obligees hereunder and any one or more of them may enforce such provisions. In SECTION 1102. No Payment on Securities in Certain Circumstances.
(a) No payment shall be made by or on behalf of the Company on account of the principal of, premium (if any) or interest on or any Additional Amounts with respect to the Securities of any series or to acquire any of such Securities (including any repurchases of such Securities pursuant to the provisions thereof at the option of the Holder of such Securities) for cash or property (other than Junior securities of the Company), or on account of any redemption provisions of such Securities, in the event that the Company shall of default in the payment of any principal of of, premium (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company by the holders of otherwise (a "Senior Indebtedness or any trustee thereforPayment Default"), unless and until such Senior Payment Default has been cured or waived or otherwise has ceased to exist.
(b) No payment shall be made by or on behalf of the Company on account of the principal of, premium (if any) or interest on or any Additional Amounts with respect to the Securities of any series or to acquire any of such Securities (including any repurchases of such Securities pursuant to the provisions thereof at the option of the Holder of such Securities) for cash or property (other than Junior securities of the Company), or on account of the redemption provisions of such Securities, in the event of any event of default (other than a Senior Payment Default) with respect to any Designated Senior Indebtedness permitting the holders of such Designated Senior Indebtedness (or a trustee or other representative on behalf of the holders thereof) to declare such Designated Senior Indebtedness due and payable prior to the date on which it would otherwise have become due and payable, upon written notice thereof to the Company and the Trustee by any holders of Designated Senior Indebtedness (or a trustee or other representative on behalf of the holders thereof) (the "Payment Notice"), unless and until such event of default shall have been cured or waived or shall have otherwise has ceased to exist; provided, that such payments may not be prevented pursuant to this Section 1102(b) for more than 179 days after an applicable Payment Notice has been received by the Trustee unless the Designated Senior Indebtedness in respect of which such event of default exists has been declared due and payable in its entirety, in which case no direct such payment may be made until such acceleration has been rescinded or indirect annulled or such Designated Senior Indebtedness has been paid in full. No event of default that existed or was continuing on the date of any Payment Notice (whether or not such event of default is on the same issue of Designated Senior Indebtedness) may be made the basis for the giving of a second Payment Notice, and only one such Payment Notice may be given in any 365-day period.
(c) In furtherance of the provisions of Section 1101, in the event that, notwithstanding the foregoing provisions of this Section 1102, any payment or distribution of assets of the Company (in cash, property, securities, by set-off or otherwiseother than Junior securities of the Company) shall be made received by the Trustee or agreed the Holders of Securities of any series at a time when such payment or distribution was prohibited by the provisions of this Section 1102, then, unless such payment or distribution is no longer prohibited by this Section 1102, such payment or distribution (subject to the provisions of Section 1107) shall be made on account received and held in trust by the Trustee or such Holder or Paying Agent for the benefit of the principal holders of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up Senior Indebtedness of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly by the Trustee or such Holders or such Paying Agent, as the case may be, to the holders of Senior Indebtedness of the Company in accordance with remaining unpaid or unprovided for or their representative or representatives, or to the priorities then existing among trustee or trustees under any indenture pursuant to which any instruments evidencing such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall may have been paid in full. In the event thatissued, notwithstanding the foregoingratably, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least according to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment aggregate amounts remaining unpaid on account of all such Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan held or reorganization or readjustment)represented by each, shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated after giving effect to all rights of any holders of Senior Indebtedness of the Company concurrent payments and distributions to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of such Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, Securities by his acceptance thereof likewise covenants and agrees, that all Securities are subject to the provisions of this Article 5; and each Person holding any Security, whether upon original issue or upon transfer or assignment thereof, agree accepts and agrees to be bound by such provisions and acknowledges that (a) such provisions are for the benefit of, and shall be enforceable directly by, the holders of Senior Indebtedness. Each Holder of Securities authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate, in the sole discretion of the Trustee, to acknowledge or effectuate the subordination between the Holders of Securities and the holders of Senior Indebtedness as provided in this Article 5 and appoints the Trustee as such Holder's attorney-in-fact for any and all such purposes. The payment of the principal of, premium (premium, if any) , and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect due pursuant to this Indenture or any Securities issued hereunder (including, without limitation, the payment or deposit of the SecuritiesRedemption Price, including on account of the acquisition Purchase Price or redemption of Securities by the Company, is subordinatedRepurchase Price pursuant to Article 3 and any deposit pursuant to Section 6.3) shall, to the extent and in the manner provided hereinafter set forth, be subordinated and subject in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company outstanding at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery date of this Indenture to an agent for the holders or thereafter created, incurred, assumed or guaranteed. The Securities are not superior in right of Senior Indebtedness of the Company or consent payment to the filing of a financing statement Existing Notes and shall rank pari passu with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsExisting Notes.
Appears in 1 contract
Samples: Indenture (Waste Connections Inc/De)
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In Indebtedness.
(b) Subject to Section 13.4, if (i) the event that the Company Issuer shall default Default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other Default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default Default to the Company Issuer and the Trustee by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have until, in either case, the Default has been cured or waived or shall have otherwise ceased to exist, and any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the SecuritiesSecurities other than those made in capital stock of the Issuer (or cash in lieu of fractional shares thereof).
(c) If any Default (other than a Default described in paragraph (b) of this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the Issuer and the Trustee of written notice thereof (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness specifying an election to prohibit such payment and other action by the Issuer in accordance with the following provisions of this paragraph (c), the Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) of this Section 13.1 during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Issuer may resume payments on the Securities following such Payment Blockage Period. In no event will a Payment Blockage Period extend beyond 179 days from the event ofdate of the receipt by the Trustee and the Company of the notice initiating such Payment Blockage Period. Any number of notices of a Senior Nonmonetary Default may be given during a Payment Blockage Period; provided that no such notice shall extend such Payment Blockage Period, only one Payment Blockage Period may be commenced within any 360-day period and there shall be a period of at least 181 consecutive days in each period of 360 consecutive days when no Payment Blockage Period is in effect.
(1d) If (i) (A) without the consent of the Issuer, a receiver, conservator, liquidator or trustee of the Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of Debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Law), and is not dismissed within 60 days after such filing; or (ii) the Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of Debt, dissolution, liquidation or other relief with respect to itself or its Debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Law) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails to, or cannot, pay its creditors Debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyIssuer takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), adjustment) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Issuer ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Issuer the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred to, to the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyIssuer or any Holder of Securities. Nothing contained herein shall impair, as between the Issuer and the Holders of Securities of each series, the obligation of the Issuer to pay to such Holders the principal of, premium, if any, and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of to remove cash, securities or other property otherwise payable or deliverable to the Company Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company Issuer and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company or consent to Issuer in respect of any security interest the filing creation of a financing statement with respect thereto) as may, in the opinion of counsel designated which is not prohibited by the holders provisions of a majority in principal amount this Indenture.
(i) The securing of any obligations of the Senior Indebtedness of Issuer, otherwise ranking on a parity with the Company at Securities, shall not be deemed to prevent such obligations from constituting obligations ranking on a parity with the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Samples: Subordinated Indenture (York International Corp /De/)
Securities Subordinated to Senior Indebtedness. The Company Issuer covenants and agrees, and each Holder of a Securitythe Securities of any series, by his or her acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) ), interest, if any, on, and interest on and any Additional Amounts with Amounts, if any, payable in respect to of each and all of the Securities and (b) of any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, series is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. In the event (a) of any distribution of assets of the Issuer upon any dissolution, winding up, liquidation or reorganization of the Issuer whether in bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Issuer or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of the Issuer which complies with the requirements of Article 5, or (b) that a default shall have occurred and be continuing with respect to the payment of principal of (and premium, if any), interest, if any, on, and Additional Amounts, if any, payable in respect of any Senior Indebtedness specified in such Security Indebtedness, or (c) that the principal of the Securities of any series (or in the case of Original Issue Discount Securities, the portion of the principal amount thereof referred to in Section 6.02) shall have been declared due and payable pursuant to Section 6.02 and such supplemental indenture. Such subordination provisions declaration shall constitute not have been rescinded and annulled as provided in Section 6.02, then:
(1) in a continuing offer to circumstance described in the foregoing clause (a) or (b) the holders of all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for in the benefit of circumstance described in the foregoing clause (c) the holders of such all Senior Indebtedness and outstanding at the time the principal of such Securities of any one series (or more of them may enforce such provisions. In the event that the Company shall default in the case of Original Issue Discount Securities, such portion of the principal amount) shall have been so declared due and payable, shall first be entitled to receive payment of any the full amount due thereon in respect of principal of (or and premium, if any) ), interest, if any, on, and Additional Amounts, if any, or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money’s worth, before the Holders of any of the Securities of any series are entitled to be made receive any payment on account of the principal of or interest on any of the Securities(and premium, or if any), interest, if any, on, and Additional Amounts, if any, in respect of any redemption, retirement, purchase or other acquisition the indebtedness evidenced by the Securities of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,series;
(2) any proceeding for payment by, or distribution of assets of, the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement Issuer of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, property or securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer as reorganized or readjusted or securities of the Issuer or any other corporation entity provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions this Article 13 with respect to the indebtedness evidenced by the Securitiessecurities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at holders of the time outstanding and to any securities issued in respect thereof under any Senior Indebtedness are not altered by such plan of reorganization or readjustment), to which would otherwise (but for these subordination provisions) be payable or deliverable in respect the Holders of any of the Securities of any series would be entitled except for the provisions of this Article 13 shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of any of the Company (including any interest thereon accruing after the commencement Securities of any such proceedingsseries under this Indenture; and
(3) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Issuer of any character kind or any securitycharacter, whether in cash, property or securities or other property (other than securities of the Company Issuer as reorganized or readjusted or securities of the Issuer or any other corporation entity provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these subordination provisions this Article 13 with respect to the indebtedness evidenced by the SecuritiesSecurities of any series, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at the time outstanding and to any securities issued in respect thereof under any holders of Senior Indebtedness are not altered by such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention Holders of any of the terms hereof Securities of any series before all Senior Indebtedness is paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of the Company at the time outstanding in accordance with the priorities then existing among such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. (1) The Company agrees, and each Holder of a Security, the Securities by his acceptance thereofthereof likewise agrees, agree that (a) the payment of the principal of, premium (premium, if any) , and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect all of the Securitiesforegoing, including on account a "Payment or Distribution") is subordinated and junior in right of the acquisition or redemption of Securities by the Companypayment, is subordinatedexcept as provided in Section 8.1, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedthis Article XI, to the prior payment in full in cash of all Senior Indebtedness specified in such Security whether outstanding on the date hereof or in such supplemental indenturehereafter created, incurred, assumed or guaranteed. Such subordination provisions A Payment or Distribution shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, include any asset of any kind or continue to hold, any of such Senior Indebtednesscharacter, and such provisions are made for the benefit may consist of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, securities or other property, securities, by set-off or otherwise) , and shall be made or agreed to be made on account of the principal of or interest on include, without limitation, any of the Securitiespurchase, or in respect of any redemption, retirement, purchase redemption or other acquisition of Securities or the making of any deposit of the Securities. In the event of
funds or securities pursuant to this Indenture (1) including, without limitation, any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating deposit pursuant to the Company, its creditors or its property,Article VIII hereof).
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any The Senior Indebtedness of the Company shall continue to be prejudiced Senior Indebtedness and entitled to the benefit of these subordination provisions irrespective of any amendment, modification or waiver of any term of any instrument relating to refinancing of the Senior Indebtedness. There shall be no limit on the amount of Senior Indebtedness that the Company may incur.
(3) All the provisions of this Indenture and the Securities shall be subject to the provisions of this Article XI so far as they may be applicable thereto, except that nothing in this Article XI shall apply to claims for, or payments to, the Trustee under or pursuant to Article VII of this Indenture.
(4) No right of any holder of any Senior Indebtedness to enforce subordination of the indebtedness evidenced by the Securities as herein provided shall at any time or in any way be affected or impaired by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Companyany Paying Agent, the Holders of the Securities, the Trustee or the holders of the Senior Indebtedness, or by any noncompliance by the Company, any Paying Agent, the Holders of the Securities or the Trustee with any of each series shall be subrogated to all rights the terms, provisions and covenants of the Securities or this Indenture, regardless of any holders knowledge thereof that any such holder of Senior Indebtedness of the Company to receive any further payments may have or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which be otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionscharged with.
Appears in 1 contract
Samples: Indenture (American Retirement Corp)
Securities Subordinated to Senior Indebtedness. The Company Corporation covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree whether upon original issue or upon transfer, assignment or exchange thereof, likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, thereof is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Corporation or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Corporation, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on all Senior Indebtedness specified before the Holders of the Securities are entitled to receive any payment on account of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such Security proceedings in respect of the Securities after giving effect to any concurrent payment or distribution in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any respect of such Senior Indebtedness;
(2) In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default under clauses (5) or (6) of Section 5.1 hereof (under circumstances when the provisions of the foregoing clause (1) or the following clause (3) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such Security so becomes due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 5.2, be entitled to receive payment in full of all principal of, and premium and interest on, all such provisions Senior Indebtedness before the Holders of the Securities of such series are made entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(3) In the benefit of event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness to accelerate the maturity thereof, if either:
(A) notice of such default, in writing, shall have been given to the Corporation and any one or more to the Trustee, provided that judicial proceedings shall be commenced in respect of them may enforce such provisions. In default within 180 days in the event that the Company shall case of a default in the payment of principal or interest and within 90 days in the case of any principal other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 14.1(3) in any twelve months period; or
(or B) judicial proceedings shall be pending in respect of such default, the Holders of the Securities and the Trustee, for the benefit of the Holders of the Securities, for their benefit shall not be entitled to receive any payment on account of principal, premium, if any) , or interest on and Additional Amounts thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on, such Senior Indebtedness shall have been made or provided for. The Trustee, promptly upon receipt of any notice received by it pursuant to this Section 14.1 shall send a copy of such notice to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security Register. In case despite the foregoing provisions, any payment or distribution shall, in any such event, be paid or delivered to any Holder of the Company when the same becomes due and payable, whether at maturity Securities or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by Trustee, for the benefit of the Holders of the Securities, before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid and delivered to the holders of Senior Indebtedness (or any trustee therefor, unless and their duly authorized representatives) until such default all Senior Indebtedness shall have been cured or waived or paid in full. The Corporation shall have ceased give written notice to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition arrangement or other similar proceeding relating relative to the Company, its creditors Corporation within the meaning of this Section 14.1. Upon any payment or its property,
(2) any proceeding for the liquidation, dissolution or other winding up distribution of assets of the CompanyCorporation referred to in this Article 14, voluntary or involuntarythe Trustee, whether or not involving insolvency or bankruptcy proceedings,
(3subject to the provisions of Section 315(a) any assignment by through 315(d) of the Company Trust Indenture Act, and the Holders of the Securities shall be entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors, or
(4) any creditors or other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any liquidating agent making such proceedings) shall first be paid in full before any payment or distribution, whether delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the persons entitled to participate in cashsuch distribution, securities the holders of the Senior Indebtedness and other indebtedness of the Corporation, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other property, facts pertinent thereto or to this Article 14. The Trustee shall be made entitled to any Holder conclusively rely on the delivery to it of a written notice by a person representing himself to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 14.1, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Securities on account thereof. Any Trustee as to the amount of Senior Indebtedness held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, whether in cashand as to other facts pertinent to the rights of such person under this Section 14.1, securities 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. For purposes of this Article, the words, “cash or other property (other than or securities” shall not be deemed to include shares of stock or warrants to purchase shares of stock of the Corporation as reorganized or readjusted, or securities of the Company Corporation or any other corporation provided for by a plan of arrangement, reorganization or readjustment readjustment, the payment of which is subordinate, subordinated (at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securities, ) to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of which may at the Companytime be outstanding; provided, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any such arrangement, reorganization or readjustment, and (ii) the rights of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness are not, without the consent of such holders, altered by such arrangement, reorganization or readjustment. The consolidation of the Company at Corporation with, or the time outstanding, be necessary or appropriate to assure the effectiveness merger of the subordination effected by these provisionsCorporation into, another corporation or the liquidation or dissolution of the Corporation following the sale, conveyance or transfer of all or substantially all of its property and assets to another corporation upon the terms and conditions provided in Article 8 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section if such other corporation shall, as a part of such consolidation, merger, sale, conveyance or transfer, comply with the conditions stated in Article 8. This Section shall be subject to the further provisions of Section 14.6.
Appears in 1 contract
Samples: Indenture (FNB Corp/Fl/)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal of, premium (if any) of and interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment (a) of any principal of (insolvency or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness bankruptcy proceedings or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition reorganization or other similar proceeding relating to proceedings in respect of the Company, its creditors Company or a substantial part of its property,
(2) , or of any proceeding proceedings for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,bankruptcy, or (b) subject to the provisions of Section 1302 that (i) a default shall have occurred with respect to the payment of principal of or interest on or other monetary amounts due and payable on any Senior Indebtedness, or (ii) there shall have occurred an event of default (other than a default in the payment of principal or interest or other monetary amounts due and payable) in respect of any Senior Indebtedness, as defined therein or in the instrument under which the same is outstanding, permitting the holder or holders thereof to accelerate the maturity thereof (with notice or lapse of time, or both), and such event of default shall have continued beyond the period of grace, if any, in respect thereof, and, in the cases of subclauses (i) and (ii) of this clause (b), 77 such default or event of default shall not have been cured or waived or shall not have ceased to exist, or (c) that the principal of and accrued interest on the Securities of any series shall have been declared due and payable pursuant to Section 501 and such declaration shall not have been rescinded and annulled as provided in Section 501 then:
(3i) any assignment by the Company for the benefit holders of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in entitled to receive payment of the full before any payment amount due thereon, or distribution, whether in cash, securities or other property, provision shall be made to any Holder for such payment in money or money's worth, before the Holders of any of the Securities are entitled to receive a payment on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company principal of or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to interest on the indebtedness evidenced by the Securities, including, without limitation, any payments made pursuant to the Article 12;
(ii) any payment by or distribution of all Senior Indebtedness of assets of, the Company at of any kind or character, whether in cash, property or securities, to which the time outstanding and to Holders of any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities or the Trustee would be entitled except for the provisions of any series this Article shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the holders of the Company indebtedness evidenced by the Securities or to the Trustee under this instrument; and
(including any interest thereon accruing after the commencement of any such proceedingsiii) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Company of any character kind or any securitycharacter, whether in cash, securities property or other property (other than securities securities, in respect of principal of or interest on the Securities or in connection with any repurchase by the Company of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention the Holders of any of the terms hereof Securities before all Senior Indebtedness is paid in full, or provision made for such payment in money or money's worth, such payment or distribution in respect of principal of or security shall be received interest on the Securities or in trust for connection with any repurchase by the benefit of, and Company of the Securities shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness of or their representative or representatives or to the Company at the time outstanding in accordance with the priorities then existing among trustee or trustees under any indenture under which any instruments evidencing any such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness Indebtedness. Notwithstanding the foregoing, at any time after the 91 st day following the date of deposit of cash or, in the Companycase of Securities payable only in Dollars, shall, as between U.S. Government Obligations pursuant to Section 401 (provided all other conditions set out in such Section shall have been satisfied) the Company funds so deposited and its creditors other than the any interest thereon will not be subject to any rights of holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of those arising under this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsArticle 13.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company Company, for itself and its successors, and each Holder of a SecurityHolder, by his or her acceptance thereofof Securities, agree agrees that (a) the payment of the principal of, premium (Principal of if any) , and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedthis Article Ten, to the prior right of payment in full to all present and future Senior Indebtedness, and that these subordination provisions are for the benefit of all the holders of Senior Indebtedness. The provisions of this Article Ten are for the benefit of the holders of the Senior Indebtedness specified from time to time (and their successors and assigns) and shall be enforceable directly by them and their respective Representatives directly against the Company, the Trustee and the Holders (and their successors and assigns). The provisions of this Article Ten shall be a continuing agreement and shall be irrevocable and shall remain in such Security full force and effect until payment in the full of the Senior Indebtedness in cash or in such supplemental indenture. Such subordination provisions cash equivalents, and shall constitute a continuing and irrevocable offer to all Persons who, in reliance upon such provisions, who become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of Indebtedness (whether such Senior Indebtedness and any one was created or more of them may enforce such provisions. In acquired before or after the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any issuance of the Securities), or in respect each of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding which holders shall be deemed for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all purposes hereof to have acquired Senior Indebtedness in reliance upon the provisions of the Company (including any interest thereon accruing after this Article Ten. The provision of this Article Ten shall survive the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities reorganization or other property, shall be made proceedings with respect to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan Person and the discharge of any claim in connection with such reorganization or readjustment other proceedings, including, without limitation, the payment discharge of which is subordinate, at least to any Senior Indebtedness. The holders of the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness and their respective representatives are hereby authorized to demand specific performance of the Company provisions of this Article Ten at the any time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of when the Company or any other corporation provided for by Holder shall have failed to comply with any provision of this Article Ten applicable to it, and the Company and each Holder hereby irrevocably waives any defense based on the adequacy of a plan of reorganization or readjustment the payment of which are subordinate, remedy at least law that might be asserted as a bar to the extent provided remedy of specific performance hereof in these subordination provisions with respect to the indebtedness evidenced any action brought therefor by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionstheir respective representatives.
Appears in 1 contract
Samples: Subordinated Debt Indenture (Donaldson Lufkin & Jenrette Inc /Ny/)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, Securities by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness. Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any one amendment, modification or more waiver of them may enforce such provisions. any term of Senior Indebtedness or extension or renewal of Senior Indebtedness.
(a) In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at on a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, property or securities or by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest on any of the Securities, or as a sinking fund for the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. .
(b) Upon the happening of an event of default with respect to any Senior Indebtedness, permitting the holders thereof to accelerate the maturity thereof (other than under circumstances when the terms of Section 1501(1)(a) are applicable), then, unless and until such event of default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property or securities or by set-off or otherwise) shall be made or agreed to be made on account of the principal of, or premium, if any, or interest on the Securities, or as a sinking fund for the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities, during any period:
(i) of 90 days after written notice of such default shall have been given to the Company by any holder of Senior Indebtedness; or
(ii) in which any judicial proceeding shall be pending in respect of such default and a notice of acceleration of the maturity of such Senior Indebtedness shall have been transmitted to the Company in respect of such default.
(2) In the event of:
(1a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2b) any proceeding for the liquidation, dissolution or other winding winding-up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3c) any assignment by the Company for the benefit of creditors, or
(4d) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereofof the Securities. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisionsthe provisions of this Article) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. .
(3) In the event thatthat any Security shall be declared due and payable as the result of the occurrence of any one or more defaults in respect thereof, notwithstanding under circumstances when the foregoingterms of Section 1501(2) are not applicable, no payment shall be made in respect of any Securities unless and until all Senior Indebtedness shall have been paid in full or such declaration and its consequences shall have been rescinded and all such defaults shall have been remedied or waived.
(4) If any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these subordination the provisions of this Article with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder of Securities in contravention of any of the terms hereof and before all the Senior Indebtedness shall have been paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding outstanding, in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness remaining unpaid, or, if applicable, to any trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company remaining unpaidCompany, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder of Securities to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder .
(5) Nothing contained herein shall impair, as between the Company and the Holder of any Senior Indebtedness Securities, the obligation of the Company to pay to the Holder thereof the principal thereof and interest thereon as and when the same shall be prejudiced become due and payable in accordance with the right terms of such Security, or prevent the Holder of any Securities from exercising all rights, powers and remedies otherwise permitted by applicable law or pursuant to enforce subordination the terms of this Indenture and the Security, upon a default or Event of Default under this Indenture, all subject to the rights of the indebtedness evidenced by the Securities by any act or failure to act on the part holders of the Company. Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the Holders of the Company Securities.
(6) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property cash equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by all amounts owing on the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, the holders of the Securities by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holdersthe Holders of Securities, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such seriesSecurities. The Company shall give prompt written notice to the Trustee and Holders will take such action (includingof any insolvency, without limitationbankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the delivery Company within the meaning of this Indenture to an agent for the holders Section. Upon any payment or distribution of Senior Indebtedness assets of the Company or consent referred to in this Article, the Trustee, subject to the filing provisions of Section 601, and the Holders of Securities shall be entitled to rely upon a financing statement with respect thereto) as maycertificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the person entitled to participate in the opinion of counsel designated by such distribution, the holders of a majority in principal amount of the Senior Indebtedness and other indebtedness of the Company at Company, the time outstandingamount thereof or payable thereon, be necessary the amount or appropriate amounts paid or distributed thereon and all other facts pertinent thereto or to assure this Article. In the effectiveness event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any person as a holder of Senior 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 subordination effected Trustee as to the amount of Senior Indebtedness held by these provisionssuch 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.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all of the Securities is hereby expressly subordinate and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinatedjunior, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified Indebtedness.
(a) Upon any distribution of assets of the Company, upon any dissolution, winding up, liquidation or reorganization of the Company, whether in such Security bankruptcy, insolvency, reorganization or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance receivership proceedings or upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made an assignment for the benefit of creditors or any other marshaling of the assets and liabilities of the Company or otherwise, then the holders of such all Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the first be entitled to receive payment of the full amount due thereon in cash or other consideration satisfactory to the holders of Senior Indebtedness in respect of principal (and premium, if any) and interest, or provision shall be made for such amount in cash or other consideration satisfactory to the holders of Senior Indebtedness, before the Holders of any of the Securities are entitled to receive any payment or distribution of any character, whether in cash, securities or other property, on account of the principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or indebtedness evidenced by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In For purposes of this Article Twelve, the event of
(1) any insolvencywords, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in "cash, securities or other property, " shall not be made deemed to any Holder include shares of any stock of the Securities on account thereof. Any payment Company as reorganized or distributionreadjusted, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment readjustment, the payment of which is subordinate, subordinated at least to the extent provided in these subordination provisions this Article Twelve with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company which may at the time outstanding and to be outstanding; PROVIDED that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise and (but for these subordination provisionsii) be payable or deliverable in respect the rights of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company in accordance with with, or the priorities then existing among such holders until all Senior Indebtedness merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article Five shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 12.01(a) if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Five.
(including b) No payment shall be made by the Company with respect to the principal of, premium, if any, or interest on the Securities or to acquire any of the Securities, if (i) any default in payment of the principal of or premium, if any, or interest thereon accruing after the commencement on, rent under, or any other payment obligation under any Senior Indebtedness occurs and is continuing (a "PAYMENT DEFAULT") beyond any applicable grace period with respect thereto, unless and until all such payments due in respect of any such proceedings) shall Senior Indebtedness have been paid in fullfull in cash or other consideration satisfactory to holders of Senior Indebtedness or such default shall have been cured or waived or shall have ceased to exist, (ii) any event of default, other than a Payment Default, with respect to any Designated Senior Indebtedness occurs and is continuing permitting the holders of such Designated Senior Indebtedness (or a trustee or other representative on behalf of the holders thereof) to declare such Designated Senior Indebtedness due and payable prior to the date on which it would otherwise have become due and payable, and the Trustee receives notice thereof from the Company or by any holders of such Designated Senior Indebtedness (or a trustee or other representative on behalf of the holders thereof) (the "PAYMENT BLOCKAGE NOTICE"), for a period (the "PAYMENT BLOCKAGE PERIOD") ending on the earlier of the date on which such event of default shall have been cured or waived or shall have ceased to exist or 179 days after receipt of the Payment Blockage Notice, or (iii) any judicial proceeding shall be pending with respect to any such default in payment or event of default; PROVIDED, FURTHER, any number of additional Payment Blockage Periods may be commenced during an existing Payment Blockage Period; PROVIDED, HOWEVER, that no such additional Payment Blockage Period shall extend beyond the initial Payment Blockage Period. Notwithstanding anything in the subordination provisions of this Indenture or the Securities to the contrary, (x) in no event will a Payment Blockage Period extend beyond 179 days from the date of the Payment Blockage Notice in respect thereof was given and (y) there shall be a period of at least 181 consecutive days in each 360-day period when no Payment Blockage Period is in effect. No nonpayment default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be the basis for a subsequent payment blockage notice.
(c) If the maturity of the Securities is accelerated, no payment may be made on the Securities until all amounts due or to become due on Senior Indebtedness have been paid in full in cash or other consideration satisfactory to holders of Senior Indebtedness or until such acceleration has been cured or waived.
(d) In the event that, notwithstanding the foregoingforegoing provisions of Sections 12.01(a), (b) and (c), any payment on account of principal of or distribution of any character interest on the Securities shall be made by or any security, whether in cash, securities or other property (other than securities on behalf of the Company and received by the Trustee, by any Holder or by any other corporation provided Paying Agent (or, if the Company is acting as its own Paying Agent, money for by a plan of reorganization or readjustment the any such payment of which are subordinateshall be segregated and held in trust), at least a time when such payment is not permitted by any of such provisions, then, unless and until all Senior Indebtedness (or Designated Senior Indebtedness, in the case of Section 12.01(b)) is paid in full in cash or other consideration satisfactory to the extent provided in these subordination provisions with respect holders thereof, or such payment is otherwise permitted to the indebtedness evidenced be made by the Securitiesprovisions of each of Sections 12.01(a), 12.01(b) and 12.01(c) (subject, in each case, to the payment provisions of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustmentSection 12.07), such payment on account of principal of or interest on the Securities shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received held in trust for the benefit of, and shall be immediately paid over or delivered and transferred to, the holders of Senior Indebtedness (or Designated Senior Indebtedness, in the case of Section 12.01(b)) or their representative or representatives or the trustee or trustees under any indenture under which any instruments evidencing any of the Senior Indebtedness (or Designated Senior Indebtedness, in the case of the Company at the time outstanding in accordance with the priorities then existing among such holders for application Section 12.01(b)) may have been issued, as their interests may appear. Regardless of anything to the payment of all Senior Indebtedness of the Company remaining unpaidcontrary herein, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or nothing shall prevent (A) any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account or the Trustee to Holders of Senior Indebtedness amounts in connection with a redemption of Securities if (i) notice of such redemption has been given pursuant to Section 3.01 prior to the Companyreceipt by the Trus- tee of a Payment Blockage Notice, and (ii) such notice of redemption is given not on account of earlier than 75 days before the Securities of such series. The Redemption Date, or (B) any payment by the Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing Holders of a financing statement amounts deposited with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate it pursuant to assure the effectiveness of the subordination effected by these provisionsSection 8.01.
Appears in 1 contract
Samples: Indenture (Gilead Sciences Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, thereof is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of:
(1) In the event of any insolvencyinsolvency or bankruptcy proceedings, bankruptcy, and any receivership, liquidation, reorganization, readjustmentarrangement, readjustment of debt, composition or other similar proceeding relating proceedings in connection therewith, relative to the Company, its creditors Company or to its property,
(2) , and in the event of any proceeding proceedings for the voluntary or involuntary liquidation, dissolution or other winding winding-up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by bankruptcy, then the Company for the benefit holders of creditorsSenior Indebtedness shall be entitled to receive payment in full of all principal, or
(4) any premium and interest on or other marshalling of the assets of the Companyamounts in respect of, all Senior Indebtedness before the Holders of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before Securities are entitled to receive any payment or distribution, whether in cash, securities or other property, on account of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be made entitled to receive for application in payment thereof any Holder payment or distribution of any of the Securities on account thereof. Any payment kind or distributioncharacter, whether in cash, securities or other property (other than securities property, which may be payable or deliverable in any such proceedings in respect of the Company Securities after giving effect to any concurrent payment or any other corporation provided for by a plan distribution in respect of reorganization or readjustment the such Senior Indebtedness, except securities which are subordinate and junior in right of payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of then outstanding;
(2) In the Company at the time outstanding and to event that any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (1) or the following clause (3) shall not be paid or delivered directly to applicable), the holders of Senior Indebtedness outstanding at the time such Security so becomes due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 5.02, be entitled to receive payment in full of all principal of, and premium and interest on or other amounts in respect of, all such Senior Indebtedness before the Holders of the Securities of such series are entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(3) In the event there shall have occurred and be continuing (i) any default in any payment with respect to any Senior Indebtedness beyond any applicable grace period or (ii) an event of default with respect to any Senior Indebtedness as a result of which the maturity thereof may be accelerated, unless and until such payment default or event of default shall have been cured or waived or shall have ceased to exist and any acceleration shall have been rescinded or annulled, or in the event any judicial proceeding shall be pending with respect to any such default in payment or event of default, no payments of principal, premium, if any, or interest and Additional Amounts thereon with respect to the Securities shall be made by the Company. The Company shall give written notice to the Trustee within five days after the occurrence of any insolvency, bankruptcy, receivership, liquidation, reorganization, arrangement, readjustment of debt, composition or other similar proceeding of the Company in accordance with within the priorities then existing among such holders until all Senior Indebtedness meaning of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in fullthis Section 13.01. In the event that, notwithstanding the foregoing, Upon any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities assets of the Company or any other corporation provided for by a plan of reorganization or readjustment referred to in this Article Thirteen, the payment of which are subordinateTrustee, at least subject to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Section 315(a) through 315(b) of the Company at Trust Indenture Act, and the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), Holders of the Securities shall be received by entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered to the Trustee or any Holder in contravention to the Holders of any of the terms hereof such payment or distribution or security shall be received in trust Securities, for the benefit of, and shall be paid over or delivered and transferred topurpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the and other indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Thirteen. The Trustee shall be subrogated entitled to all rights conclusively rely on the delivery to it of any holders a written notice by a person representing himself to be a holder of Senior Indebtedness of the Company to receive any further payments (or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities a trustee or agent on behalf of such series shall have holder) to establish that such notice has been paid in full, and such payments or distributions received given by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the Companyevent that the Trustee determines, shallin good faith, that further evidence is required with respect to the right of any person as between the Company and its creditors other than the holders a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 13.01, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Company, on Trustee as to the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account amount of Senior Indebtedness of held by such person, as to the Companyextent to which such person is entitled to participate in such payment or distribution, and not on account of as to other facts pertinent to the Securities rights of such series. The Trustee person under this Section 13.01, and Holders will take if such action (including, without limitationevidence is not furnished, the delivery of this Indenture Trustee may defer any payment to an agent for the holders of Senior Indebtedness of the Company or consent such person pending judicial determination as to the filing right of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate such person to assure the effectiveness of the subordination effected by these provisionsreceive such payment.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The (a) Intersolv and the Company agree, and each Holder holder of a Security, Notes by his acceptance thereofthereof likewise agrees, agree that (a) the payment of the principal of, premium (premium, if any) , and interest on and any Additional Amounts with respect to each and the Notes, (all the Securities and (b) any other payment in respect of the Securitiesforegoing, including on account of the acquisition a "Payment or redemption of Securities by the CompanyDistribution"), is subordinatedsubordinated and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, this Article IX to the prior payment in full of all Senior Indebtedness specified in such Security whether outstanding on the date hereof or in such supplemental indenturehereafter created, incurred, assumed or guaranteed. Such subordination provisions A Payment or Distribution shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, include any asset of any kind or continue to hold, any of such Senior Indebtednesscharacter, and such provisions are made for the benefit may consist of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, securities or other property, securities, by set-off or otherwise) , and shall be made include, without limitation, any payment pursuant to a judgment rendered against the Company or agreed to be made Intersolv on account behalf of the principal of or interest on any holders of the SecuritiesNotes, or in respect of any redemptionpurchase, retirement, purchase redemption or other acquisition of the Notes, or the making of any deposit of the Securities. In the event offunds or securities pursuant to this Agreement.
(1b) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating The Senior Indebtedness shall continue to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for be Senior Indebtedness and entitled to the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities irrespective of any series shall be paid amendment, modification or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement waiver of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution term of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least instrument relating to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders refinancing of the Senior Indebtedness Indebtedness.
(c) All the provisions of this Agreement and the Company at the time outstanding in accordance with the priorities then existing among such holders for application Notes shall be subject to the payment provisions of all Senior Indebtedness this Article IX so far as they may be applicable thereto.
(d) No right of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities as herein provided shall at any time or in any way be affected or impaired by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cashIntersolv, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders holders of Securities the Notes or the holders of each series shall be subrogated to all rights the Senior Indebtedness, or by any noncompliance by Intersolv, the Company or the holders of the Notes with any of the terms, provisions and covenants of the Notes or this Agreement, regardless of any holders knowledge thereof that any such holder of Senior Indebtedness may have or be otherwise charged with.
(e) In the event that the Notes are declared due and payable before their expressed maturity because of the Company to receive any further payments occurrence of an Event of Default hereunder, Intersolv or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities will give prompt notice in writing of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed happening to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, thereof is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on all Senior Indebtedness specified before the Holders of the Securities are entitled to receive any payment on account of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such Security proceedings in respect of the Securities after giving effect to any concurrent payment or distribution in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any respect of such Senior Indebtedness, except securities which are subordinate and junior in right of payment to the payment of all Senior Indebtedness then outstanding;
(2) In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (1) or the following clause (3) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such provisions Security so becomes due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 502, be entitled to receive payment in full of all principal of, and premium and interest on, all such Senior Indebtedness before the Holders of the Securities of such series are made entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(3) In the benefit of event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one to accelerate the maturity thereof, if either
(a) notice of such default, in writing or more of them may enforce such provisions. In the event that by telegram, shall have been given to the Company and to the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal or interest and within 90 days in the case of any principal other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 1501(3) in any twelve months period, or
(or b) judicial proceedings shall be pending in respect of such default, the Holders of the Securities and the Trustee for their benefit shall not be entitled to receive any payment on account of principal, premium, if any) , or interest on and Additional Amounts thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest 77 on, such Senior Indebtedness shall have been made or provided for. The Trustee, forthwith upon receipt of any notice received by it pursuant to this Section 1501(3), shall, as soon as practicable, send a notice thereof to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security Register. In case despite the foregoing provisions, any payment or distribution shall, in any such event, be paid or delivered to any Holder of the Company when the same becomes due and payable, whether at maturity Securities or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by Trustee for their benefit before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid and delivered to the holders of Senior Indebtedness (or any trustee therefor, unless and their duly authorized representatives) until such default all Senior Indebtedness shall have been cured or waived or paid in full. The Company shall have ceased give written notice to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition arrangement or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after within the commencement meaning of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereofthis Section 1501. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, Upon any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities assets of the Company or any other corporation provided for by a plan of reorganization or readjustment referred to in this Article Fifteen, the payment of which are subordinateTrustee, at least subject to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Section 315(a) through 315(b) of the Company at Trust Indenture Act, and the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), Holders of the Securities shall be received by entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered to the Trustee or any Holder in contravention to the Holders of any of the terms hereof such payment or distribution or security shall be received in trust Securities, for the benefit of, and shall be paid over or delivered and transferred topurpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the and other indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. The Trustee shall be subrogated entitled to all rights conclusively rely on the delivery to it of any holders a written notice by a person representing himself to be a holder of Senior Indebtedness of the Company to receive any further payments (or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities a trustee or agent on behalf of such series shall have holder) to establish that such notice has been paid in full, and such payments or distributions received given by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the Companyevent that the Trustee determines, shallin good faith, that further evidence is required with respect to the right of any person as between the Company and its creditors other than the holders a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 1501, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Company, on Trustee as to the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account amount of Senior Indebtedness of held by such person, as to the Companyextent to which such person is entitled to participate in such payment or distribution, and not on account of as to other facts pertinent to the Securities rights of such series. The Trustee person under this Section 1501, and Holders will take if such action (including, without limitationevidence is not furnished, the delivery of this Indenture Trustee may defer any payment to an agent for the holders of Senior Indebtedness of the Company or consent such person pending judicial determination as to the filing right of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate such person to assure the effectiveness of the subordination effected by these provisionsreceive such payment.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company Issuers covenant and agree, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with payable in respect to of each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness. In the event (a) of any distribution of assets of the Issuers upon any dissolution, and such provisions are made winding up, liquidation or reorganization of the Issuers whether in bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of the holders assets and liabilities of such Senior Indebtedness the Issuers or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of the Issuers which complies with the requirements of Article 4, or (b) that a default shall have occurred and any one or more of them may enforce such provisions. In the event that the Company shall default in be continuing with respect to the payment of any principal of (or premium, if any) or interest on or any Additional Amounts payable in respect of any Senior Indebtedness Indebtedness, or (c) that the principal of the Company when Securities of any series (or in the same becomes case of Original Issue Discount Securities, the portion of the principal amount thereof referred to in Section 502) shall have been declared due and payable pursuant to Section 502 and such declaration shall not
(1) in a circumstance described in the foregoing clause (a) or (b) the holders of all Senior Indebtedness, and in the circumstance described in the foregoing clause (c) the holders of all Senior Indebtedness outstanding at the time the principal of such Securities (or in the case of Original Issue Discount Securities, such portion of the principal amount) shall have been so declared due and payable, whether at maturity shall first be entitled to receive payment of the full amount due thereon in respect of principal, premium (if any), Interest and Additional Amounts, or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money's worth, before the Holders of any of the Securities are entitled to be made receive any payment on account of the principal of (or premium, if any) or interest on or any of the Securities, or Additional Amounts in respect of any redemption, retirement, purchase or other acquisition of any of the indebtedness evidenced by the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,;
(2) any proceeding for payment by, or distribution of assets of, the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement Issuers of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, property or securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuers as reorganized or readjusted or securities of the Issuers or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securitiessecurities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at holders of the time outstanding and to any securities issued in respect thereof under any Senior Indebtedness are not altered by such plan of reorganization or readjustment), to which would otherwise (but for these subordination provisions) be payable or deliverable in respect the Holders of any of the Securities would be entitled except for the provisions of any series this Article shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Company indebtedness evidenced by the Securities under this Indenture; and
(including any interest thereon accruing after the commencement of any such proceedings3) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Issuers of any character kind or any securitycharacter, whether in cash, property or securities or other property (other than securities of the Company Issuers as reorganized or any other corporation provided for by a plan of reorganization readjusted or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness securities of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.Issuers or
Appears in 1 contract
Samples: Indenture (Globalstar Capital Corp)
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness, but the Securities shall in all respects rank pari passu with all other Senior Subordinated Indebtedness of the Issuer. The Securities shall rank senior to all existing and future Indebtedness of the Issuer that is neither Senior Indebtedness nor Senior Subordinated Indebtedness and any one or more only Indebtedness of them may enforce such provisions. In the event Issuer that is Senior Indebtedness shall rank senior to the Company Securities in accordance with the provisions set forth herein.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company Issuer by the holders of Senior Indebtedness or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived waived, and any such acceleration has been rescinded or shall have ceased to existsuch Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofIssuer (or cash in lieu of fractional shares thereof).
(1c) If any default (other than a default described in paragraph (b)) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the Issuer and the Trustee of written notice thereof (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness specifying an election to prohibit such payment and other action by the Issuer in accordance with the following provisions of this paragraph, the Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) above during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Issuer may resume payments on the Securities after such Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver, conservator, liquidator or trustee of the Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Code), and is not dismissed within 60 days after such filing; or (ii) the Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of debt, dissolution, liquidation or other relief with respect to itself or its debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Code) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails generally to, or cannot, pay its creditors debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyIssuer takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.other
Appears in 1 contract
Samples: Senior Subordinated Indenture (Seagull Energy Corp)
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer agrees, and each Holder of a Security, the Securities of any series by his acceptance thereofthereof likewise agrees, agree that (a) the payment of the principal of, premium (if any) of and interest Interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect all of the Securitiesforegoing, including on account a "Payment or Distribution") is subordinated and junior in right of the acquisition or redemption of Securities by the Company, is subordinatedpayment, to the extent and in the manner provided in such Security or this Article Six A, except as provided in the supplemental indenture pursuant to which such Security is issuedSection 402, to the prior payment in full in cash of all Senior Indebtedness specified in such Security whether outstanding on the date hereof or in such supplemental indenturehereafter created, incurred, assumed or guarantied. Such subordination provisions A Payment or Distribution shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, include any asset of any kind or continue to hold, any of such Senior Indebtednesscharacter, and such provisions are made for the benefit may consist of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, by setoff or otherwise, and shall be made to include, without limitation, any Holder of any purchase, redemption or other acquisition of the Securities on account thereof. Any payment or distributionthe making of any deposit of funds or securities pursuant to this Indenture (including, whether in cashwithout limitation, securities or other property any deposit pursuant to Article Five hereof).
(other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all b) The Senior Indebtedness of the Company at the time outstanding Issuer shall continue to be Senior Indebtedness and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly entitled to the holders benefit of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect irrespective of any amendment, modification or waiver of any term of any instrument relating to the indebtedness evidenced by Senior Indebtedness or the Securities, extension or renewal or refinancing of the Senior Indebtedness.
(c) All the provisions of this Indenture and the Securities shall be subject to the payment provisions of all Senior Indebtedness of the Company at the time outstanding and this Article Six A so far as they may be applicable thereto, except that nothing in this Article Six A shall apply to any securities issued in respect thereof under any such plan claims for, or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred payments to, the holders Trustee under or pursuant to Section 606.
(d) No right of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities as herein provided shall at any time or in any way be affected or impaired by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cashIssuer, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Companyany Paying Agent, the Holders of the Securities, the Trustee or the holders of the Senior Indebtedness, or by any noncompliance by the Issuer, any Paying Agent, the Holders of the Securities or the Trustee with any of each series shall be subrogated to all rights the terms, provisions and covenants of the Securities or this Indenture, regardless of any holders knowledge thereof that any such holder of Senior Indebtedness may have or be otherwise charged with.
(e) In the event that the Securities are declared due and payable before their expressed maturity because of the Company to receive any further payments or distributions applicable to occurrence of a default hereunder, the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities Issuer will give prompt notice in writing of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed happening to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Samples: Subordinated Indenture (Liberty Property Limited Partnership)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, Securities by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal of, premium (premium, if any) any and interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness. Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any one amendment, modification or more waiver of them may enforce such provisions. any term of Senior Indebtedness or extension or renewal of Senior Indebtedness.
(a) In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at on a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, property or securities or by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest on any of the Securities, or as a sinking fund for the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. .
(b) Upon the happening of an event of default with respect to any Senior Indebtedness, permitting the holders thereof to accelerate the maturity thereof (other than under circumstances when the terms of Section 10.01(a) are applicable), then, unless and until such event of default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property or securities or by set-off or otherwise) shall be made or agreed to be made on account of the principal of, or premium, if any, or interest on the Securities, or as a sinking fund for the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities, during any period:
(i) of 90 days after written notice of such default shall have been given to the Company by any holder of Senior Indebtedness; or
(ii) in which any judicial proceeding shall be pending in respect of such default and a notice of acceleration of the maturity of such Senior Indebtedness shall have been transmitted to the Company in respect of such default.
(c) In the event of
(1i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,;
(2ii) any proceeding for the liquidation, dissolution or other winding winding-up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,;
(3iii) any assignment by the Company for the benefit of creditors, ; or
(4iv) any other marshalling of the assets of the Company, . all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereofof the Securities. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions this Article 10 with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisionsthe provisions of this Article 10) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. .
(d) In the event thatthat any Security shall be declared due and payable as the result of the occurrence of any one or more defaults in respect thereof, notwithstanding under circumstances when the foregoingterms of Section 10.01(c) are not applicable, no payment shall be made in respect of any Securities unless and until all Senior Indebtedness shall have been paid in full or such declaration and its consequences shall have been rescinded and all such defaults shall have been remedied or waived.
(e) If any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these subordination the provisions of this Article 10 with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder of Securities in contravention of any of the terms hereof and before all the Senior Indebtedness shall have been paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding outstanding, in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness remaining unpaid, or, if applicable, to any trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making paying or distribution of assets of the Company remaining unpaidCompany, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder of Securities to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder .
(f) Nothing contained herein shall impair, as between the Company and the Holder of any Senior Indebtedness Securities, the obligation of the Company to pay to the Holder thereof the principal thereof and interest thereon as and when the same shall be prejudiced become due and payable in accordance with the right terms of such Security, or prevent the Holder of any Securities from exercising all rights, powers and remedies otherwise permitted by applicable law or pursuant to enforce subordination the terms of this Indenture and the Security, upon a default or Event of Default under this Indenture, all subject to the rights of the indebtedness evidenced by the Securities by any act or failure to act on the part holders of the Company. Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the Holders of the Company Securities.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property cash equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by all amounts owing on the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, the holders of the Securities by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holdersthe Holders of Securities, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such seriesSecurities. The Company shall give prompt written notice to the Trustee and Holders will take such action (includingof any insolvency, without limitationbankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the delivery Company within the meaning of this Indenture to an agent for the holders Section 10.01. Upon any payment or distribution of Senior Indebtedness assets of the Company or consent referred to in this Article 10, the Trustee, subject to the filing provisions of Section 7.01, and the Holders of Securities shall be entitled to rely upon a financing statement with respect thereto) as maycertificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the person entitled to participate in the opinion of counsel designated by such distribution, the holders of a majority in principal amount of the Senior Indebtedness and other indebtedness of the Company at Company, the time outstandingamount thereof or payable thereon, be necessary the amount or appropriate amounts paid or distributed thereon and all other facts pertinent thereto or to assure this Article 10. In the effectiveness event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 10.01, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the subordination effected Trustee as to the amount of Senior Indebtedness held by these provisionssuch 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 10.01, 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.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company ---------------------------------------------- covenants and agrees, and each Holder of a SecuritySecurities, by his his/her/its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal of, premium (if any) any and interest on and any Additional Amounts with all amounts payable in respect to of each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made whether outstanding on the date of this Indenture or thereafter incurred, assumed or guaranteed. In the event (a) of any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company whether in a bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities and liabilities of the Company or any other corporation provided for by otherwise, except a plan distribution in connection with a merger or consolidation or a conveyance or transfer of reorganization all or readjustment substantially all of the payment properties of the Company which is subordinatecomplies with the requirements of Article Eight, at least to the extent provided in these subordination provisions or (b) that a default shall have occurred and be ------------- continuing with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued amount payable in respect thereof under of any such plan of reorganization Senior Indebtedness, or readjustment), which would otherwise (but for these subordination provisionsc) be payable or deliverable in respect that the principal of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) Series shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least declared due and payable pursuant to the extent Section 502 and such ----------- declaration shall not have been rescinded and annulled as provided in these subordination provisions with respect to the indebtedness evidenced by the SecuritiesSection ------- 502, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.then: ---
Appears in 1 contract
Samples: Indenture (Homestead Village Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, thereof is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving 70 insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on all Senior Indebtedness specified before the Holders of the Securities are entitled to receive any payment on account of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such Security proceedings in respect of the Securities after giving effect to any concurrent payment or distribution in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any respect of such Senior Indebtedness, except securities which are subordinate and junior in right of payment to the payment of all Senior Indebtedness then outstanding;
(2) In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (1) or the following clause (3) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such provisions Security so becomes due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 502, be entitled to receive payment in full of all principal of, and premium and interest on, all such Senior Indebtedness before the Holders of the Securities of such series are made entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(3) In the benefit of event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one to accelerate the maturity thereof, if either
(a) notice of such default, in writing or more of them may enforce such provisions. In the event that by telegram, shall have been given to the Company and to the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal or interest and within 90 days in the case of any principal other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 1501(3) in any twelve months period, or 71
(or b) judicial proceedings shall be pending in respect of such default, the Holders of the Securities and the Trustee for their benefit shall not be entitled to receive any payment on account of principal, premium, if any) , or interest on and Additional Amounts thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on, such Senior Indebtedness shall have been made or provided for. The Trustee, forthwith upon receipt of any notice received by it pursuant to this Section 1501(3), shall, as soon as practicable, send a notice thereof to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security Register. In case despite the foregoing provisions, any payment or distribution shall, in any such event, be paid or delivered to any Holder of the Company when the same becomes due and payable, whether at maturity Securities or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by Trustee for their benefit before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid and delivered to the holders of Senior Indebtedness (or any trustee therefor, unless and their duly authorized representatives) until such default all Senior Indebtedness shall have been cured or waived or paid in full. The Company shall have ceased give written notice to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition arrangement or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after within the commencement meaning of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereofthis Section 1501. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, Upon any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities assets of the Company or any other corporation provided for by a plan of reorganization or readjustment referred to in this Article Fifteen, the payment of which are subordinateTrustee, at least subject to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Section 315(a) through 315(b) of the Company at Trust Indenture Act, and the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), Holders of the Securities shall be received by entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered to the Trustee or any Holder in contravention to the Holders of any of the terms hereof such payment or distribution or security shall be received in trust Securities, for the benefit of, and shall be paid over or delivered and transferred topurpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the and other indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. The Trustee shall be subrogated entitled to all rights conclusively rely on the delivery to it of any holders a written notice by a person representing himself to be a holder of Senior Indebtedness of the Company to receive any further payments (or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities a trustee or agent on behalf of such series shall have holder) to establish that such notice has been paid in full, and such payments or distributions received given by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the Companyevent that the Trustee determines, shallin good faith, that further evidence is required with respect to the right of any person as between the Company and its creditors other than the holders a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 1501, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Company, on Trustee as to the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account amount of Senior Indebtedness of held by such person, as to the Companyextent to which such person is entitled to participate in such payment or distribution, and not on account of as to other facts pertinent to the Securities rights of such series. The Trustee person under this Section 1501, and Holders will take if such action (including, without limitationevidence is not furnished, the delivery of this Indenture Trustee may defer any payment to an agent for the holders of Senior Indebtedness of the Company or consent such person pending judicial determination as to the filing right of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate such person to assure the effectiveness of the subordination effected by these provisionsreceive such payment.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to all Senior
(b) Subject to Section 13.4, if (i) the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company Issuer shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company Issuer by the holders of Senior Indebtedness or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived waived, and any such acceleration has been rescinded or shall have ceased to existsuch Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofIssuer (or cash in lieu of fractional shares thereof).
(1c) If any default (other than a default described in paragraph (b)) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the Issuer and the Trustee of written notice thereof (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness specifying an election to prohibit such payment and other action by the Issuer in accordance with the following provisions of this paragraph, the Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) above during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Issuer may resume payments on the Securities after such Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver, conservator, liquidator or trustee of the Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Code), and is not dismissed within 60 days after such filing; or (ii) the Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of debt, dissolution, liquidation or other relief with respect to itself or its debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Code) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails generally to, or cannot, pay its creditors debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyIssuer takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate,
(e) If, notwithstanding the foregoing, any payment or distribution of any character, whether in cash, securities or other property (other than securities of the Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred to, to the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyIssuer or any Holder of Securities. Nothing contained herein shall impair, as between the Issuer and the Holders of Securities of each series, the obligation of the Issuer to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of to receive cash, securities or other property otherwise payable or deliverable to the Company Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company Issuer and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company Issuer in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Samples: Senior Subordinated Indenture (Belco Oil & Gas Corp)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with payable in respect to of each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness. In the event (a) of any distribution of assets of the Company upon any dissolution, and such provisions are made winding up, liquidation or reorganization of the Company whether in bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of the holders assets and liabilities of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of the Company which complies with the requirements of Article Eight, or (b) that a default shall default in have occurred and be continuing with respect to the payment of any principal of (or premium, if any) or interest on or any Additional Amounts payable in respect of any Senior Indebtedness Indebtedness, or (c) that the principal of the Company when Securities of any series (or in the same becomes case of Original Issue Discount Securities, the portion of the principal amount thereof referred to in Section 502) shall have been declared due and payable pursuant to Section 502 and such declaration shall not have been rescinded and annulled as provided in Section 502, then:
(1) in a circumstance described in the foregoing clause (a) or (b) the holders of all Senior Indebtedness, and in the circumstance described in the foregoing clause (c) the holders of all Senior Indebtedness (other than Other Obligations) outstanding at the time the principal of such Securities (or in the case of Original Issue Discount Securities, such portion of the principal amount) shall have been so declared due and payable, whether at maturity shall first be entitled to receive payment of the full amount due thereon in respect of principal, premium (if any), Interest and Additional Amounts, or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money's worth, before the Holders of any of the Securities are entitled to be made receive any payment on account of the principal of (or premium, if any) or interest on or any of the Securities, or Additional Amounts in respect of any redemption, retirement, purchase or other acquisition of any of the indebtedness evidenced by the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,;
(2) any proceeding for the liquidationpayment by, dissolution or other winding up distribution of the Companyassets of, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, property or securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities 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 subordinate, at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securitiessecurities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at holders of the time outstanding and to any securities issued in respect thereof under any Senior Indebtedness are not altered by such plan of reorganization or readjustment), to which would otherwise (but for these subordination provisions) be payable or deliverable in respect the Holders of any of the Securities would be entitled except for the provisions of any series this Article shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Company indebtedness evidenced by the Securities under this Indenture; and
(including any interest thereon accruing after the commencement of any such proceedings3) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Company of any character kind or any securitycharacter, whether in cash, property or securities or other property (other than securities 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 are is subordinate, at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at the time outstanding and to any securities issued in respect thereof under any holders of Senior Indebtedness are not altered by such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention Holders of any of the terms hereof Securities before all Senior Indebtedness is paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness is paid in full, such payment or distribution shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the Company at the time outstanding in accordance with the priorities then existing among trustee or trustees under any indenture under which any instruments evidencing any of such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Except as otherwise specified as contemplated by Section 301 for any series of Securities, the Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities of any series and the payment of the principal of, of and any premium (if any) and or interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, each series is subordinatedsubordinate, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness. Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any one amendment, modification or more waiver of them may enforce such provisionsany term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. In the event that (a) of any payment by, or distribution of assets of, the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or (b) subject to the provisions of Section 1402 that (i) a default shall default in have occurred and be continuing with respect to the payment of principal, interest or any principal of (or premium, if any) or interest other monetary amounts due and payable on any Senior Indebtedness and such default shall have continued beyond the period of grace, if any, specified in the instrument evidencing such Senior Indebtedness (and the Trustee shall have received written notice thereof from the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment one or by declaration or otherwise, then, upon written notice of such default to the Company by the more holders of Senior Indebtedness or their representative or representatives or the trustee or trustees under any trustee thereforindenture pursuant to which any such Senior Indebtedness may have been issued), unless and until such default or (ii) the maturity of any Senior Indebtedness shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account accelerated because of the principal of or interest on any of the Securities, or a default in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all such Senior Indebtedness of (and the Company (including any interest thereon accruing after the commencement of any such proceedings) Trustee shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of have received written notice thereof from the Company or any other corporation provided for by a plan of reorganization one or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the more holders of Senior Indebtedness of or their representative or representatives or the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment 62 69 trustee or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof trustees under any such plan or reorganization or readjustment), shall be received by the Trustee or indenture pursuant to which any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to may have been paid in full unless the holders thereof shall have received cashissued), securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.then:
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company Except as otherwise specified as contemplated by Section 301 for any series of Securities, the Corporation covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities of any series and the payment of the principal of, of and any premium (if any) and or interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, each series is subordinatedsubordinate, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness. Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any one amendment, modification or more waiver of them may enforce such provisionsany term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. In the event (a) of any payment by, or distribution of assets of, the Corporation of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or (b) subject to the provisions of Section 1402 that the Company (i) a default shall default in have occurred and be continuing with respect to the payment of principal, interest or any principal of (or premium, if any) or interest other monetary amounts due and payable on any Senior Indebtedness and such default shall have continued beyond the period of grace, if any, specified in the Company when instrument evidencing such Senior Indebtedness (and the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon Trustee shall have received written notice of such default to thereof from the Company by the Corporation or one or more holders of Senior Indebtedness or their representative or representatives or the trustee or trustees under any trustee thereforindenture pursuant to which any such Senior Indebtedness may have been issued), unless and until such default or (ii) the maturity of any Senior Indebtedness shall have been cured or waived or accelerated because of a default in respect of such Senior Indebtedness (and the Trustee shall have ceased received written notice thereof from the Corporation or one or more holders of Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to existwhich any such Senior Indebtedness may have been issued), no direct then:
(i) the holders of all Senior Indebtedness shall first be entitled to receive, in the case of (a) above, payment of all amounts due or indirect to become due upon all Senior Indebtedness and, in the case of subclauses (i) and of clause (b) above, payment (in cashof all amounts due thereon, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money's worth, before the Holders of any of the Securities are entitled to be made receive any payment on account of the principal of or any premium or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, including, without limitation, anypayments made pursuant to Article Eleven or Article Twelve;
(ii) any payment by, or distribution of assets of, the Corporation of any kind or character, whether in cash, property or securities, to which the Holders of any of the Securities would be entitled except for the provisions of this Article, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Corporation being subordinated to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment)Securities, which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered by the Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Company indebtedness evidenced by such Securities; and
(including any interest thereon accruing after the commencement of any such proceedingsiii) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Corporation of any character kind or any securitycharacter, whether in cash, securities property or other property (other than securities securities, including any such payment or distribution which may be payable or deliverable by reason of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to any other indebtedness of the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Corporation being subordinated to the payment of all Senior Indebtedness such Securities, in respect of principal of or any premium or interest on any of the Company at Securities or in connection with the time outstanding and to repurchase by the Corporation of any securities issued in respect thereof under any such plan or reorganization or readjustment)of the Securities, shall be received by the Trustee or any Holder in contravention the Holders of any of the terms hereof Securities when such payment or distribution is prohibited pursuant to this Section, such payment or security shall be received in trust for the benefit of, and distribution shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness of or their representative or representatives or to the Company at the time outstanding in accordance with the priorities then existing among trustee or trustees under any indenture pursuant to which any instruments evidencing any such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness Indebtedness. Notwithstanding the foregoing, at any time after the 90th day following the date of deposit of money or Government Obligations pursuant to Section 1304 (provided all other conditions set out in such Section shall have been satisfied) the Company, shall, as between the Company funds so deposited and its creditors other than the any interest thereon will not be subject to any rights of holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery those arising under this Article. For purposes of this Indenture Article Fourteen, the words "cash, property or securities" shall not be deemed to an agent include shares of stock of the Corporation as reorganized or readjusted, or securities of the Corporation or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article with respect to the Securities to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior Indebtedness is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment. The consolidation of the Company at Corporation with, or the time outstanding, be necessary or appropriate to assure the effectiveness merger of the subordination effected by these provisionsCorporation into, another Person or the liquidation or dissolution of the Corporation following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article Eight hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section if such other Person shall, as part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Eight hereof.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In Indebtedness.
(b) Subject to Section 13.4, if (i) the event that the Company Issuer shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company Issuer and the Trustee by the holders of Senior Indebtedness or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived waived, or shall have has ceased to exist, or any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the SecuritiesSecurities other than those made in capital stock of the Issuer (or cash in lieu of fractional shares thereof).
(c) If any default (other than a default described in paragraph (b) of this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a “Senior Nonmonetary Default”), then, upon the receipt by the Issuer and the Trustee of written notice thereof (a “Payment Notice”) from or on behalf of holders of not less than 25% in aggregate principal amount of the Senior Indebtedness outstanding specifying an election to prohibit such payment and other action by the Issuer in accordance with the following provisions of this paragraph (c), the Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) of this Section 13.1 during the period (the “Payment Blockage Period”) commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 120th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Issuer may resume payments on the Securities following such Payment Blockage Period. In no event shall a Payment Blockage Period extend beyond 120 days from the date of the receipt by the Trustee of the Payment Notice (the “Initial Period”). Any number of additional Payment Blockage Periods may be commenced during the Initial Period; provided, however, that no such additional period shall extend beyond the Initial Period. After the expiration of the Initial Period, no Payment Blockage Period may be commenced on the basis of a Senior Nonmonetary Default on the Senior Indebtedness which was the basis of a Payment Blockage Period commenced during the Initial Period until at least 270 consecutive days have elapsed from the last day of the Initial Period. No Senior Nonmonetary Default with respect to Senior Indebtedness which existed or was continuing on the date of the commencement of any Payment Blockage Period and of which the applicable holder(s) of Senior Indebtedness are aware shall be, or can be made, the basis for the commencement of a second Payment Blockage Period whether or not within a period of 270 consecutive days unless such event ofof default shall have been cured or waived for a period of not less than 90 consecutive days.
(1d) If (i) (A) without the consent of the Issuer, a receiver, conservator, liquidator or trustee of the Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Code), and is not dismissed within 60 days after such filing; or (ii) the Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of debt, dissolution, liquidation or other relief with respect to itself or its debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Code) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails generally to, or cannot, pay its creditors debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyIssuer takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), adjustment) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Issuer ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Issuer the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred to, to the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyIssuer or any Holder of Securities. Nothing contained herein shall impair, as between the Issuer and the Holders of Securities of each series, the obligation of the Issuer to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of to remove cash, securities or other property otherwise payable or deliverable to the Company Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company Issuer and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company or consent to Issuer in respect of any security interest the filing creation of a financing statement with respect thereto) as may, in the opinion of counsel designated which is not prohibited by the holders provisions of a majority in principal amount this Indenture.
(i) The securing of any obligations of the Senior Indebtedness of Issuer, otherwise ranking on a parity with the Company at Securities, shall not be deemed to prevent such obligations from constituting obligations ranking on a parity with the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company Except as otherwise specified as contemplated by Section 301 for any series of Securities, the Corporation covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities of any series and the payment of the principal of, of and any premium (if any) and or interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, each series is subordinatedsubordinate, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness. Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any one amendment, modification or more waiver of them may enforce such provisionsany term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. In the event (a) of any payment by, or distribution of assets of, the Corporation of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or (b) subject to the provisions of Section 1402 that the Company (i) a default shall default in have occurred and be continuing with respect to the payment of principal, interest or any principal of (or premium, if any) or interest other monetary amounts due and payable on any Senior Indebtedness and such default shall have continued beyond the period of grace, if any, specified in the Company when instrument evidencing such Senior Indebtedness (and the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon Trustee shall have received written notice of such default to thereof from the Company by the Corporation or one or more holders of Senior Indebtedness or their representative or representatives or the trustee or trustees under any trustee thereforindenture pursuant to which any such Senior Indebtedness may have been issued), unless and until such default or (ii) the maturity of any Senior Indebtedness shall have been cured or waived or accelerated because of a default in respect of such Senior Indebtedness (and the Trustee shall have ceased received written notice thereof from the Corporation or one or more holders of Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to existwhich any such Senior Indebtedness may have been issued), no direct then:
(i) the holders of all Senior Indebtedness shall first be entitled to receive, in the case of (a) above, payment of all amounts due or indirect to become due upon all Senior Indebtedness and, in the case of subclauses (i) and of clause (b) above, payment (in cashof all amounts due thereon, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money's worth, before the Holders of any of the Securities are entitled to be made receive any payment on account of the principal of or any premium or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, including, without limitation, any payments made pursuant to Article Eleven or Article Twelve;
(ii) any payment by, or distribution of assets of, the Corporation of any kind or character, whether in cash, property or securities, to which the Holders of any of the Securities would be entitled except for the provisions of this Article, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Corporation being subordinated to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment)Securities, which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered by the Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Company indebtedness evidenced by such Securities; and
(including any interest thereon accruing after the commencement of any such proceedingsiii) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Corporation of any character kind or any securitycharacter, whether in cash, securities property or other property (other than securities securities, including any such payment or distribution which may be payable or deliverable by reason of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to any other indebtedness of the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Corporation being subordinated to the payment of all Senior Indebtedness such Securities, in respect of principal of or any premium or interest on any of the Company at Securities or in connection with the time outstanding and to repurchase by the Corporation of any securities issued in respect thereof under any such plan or reorganization or readjustment)of the Securities, shall be received by the Trustee or any Holder in contravention the Holders of any of the terms hereof Securities when such payment or distribution is prohibited pursuant to this Section, such payment or security shall be received in trust for the benefit of, and distribution shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness of or their representative or representatives or to the Company at the time outstanding in accordance with the priorities then existing among trustee or trustees under any indenture pursuant to which any instruments evidencing any such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness Indebtedness. Notwithstanding the foregoing, at any time after the 90th day following the date of deposit of money or Government Obligations pursuant to Section 1304 (provided all other conditions set out in such Section shall have been satisfied) the Company, shall, as between the Company funds so deposited and its creditors other than the any interest thereon will not be subject to any rights of holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery those arising under this Article. For purposes of this Indenture Article Fourteen, the words "cash, property or ----------------- securities" shall not be deemed to an agent include shares of stock of the Corporation as ---------- reorganized or readjusted, or securities of the Corporation or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article with respect to the Securities to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, -------- as the case may be, that constitutes Senior Indebtedness is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment. The consolidation of the Company at Corporation with, or the time outstanding, be necessary or appropriate to assure the effectiveness merger of the subordination effected by these provisionsCorporation into, another Person or the liquidation or dissolution of the Corporation following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article Eight hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section if such other Person shall, as part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Eight hereof.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness but the Securities shall in all respects rank pari passu with all other Senior Subordinated Indebtedness of the Issuer. The Securities shall rank senior to all existing and any one or more future indebtedness of them may enforce such provisions. In the event Issuer that is neither Senior Indebtedness nor Senior Subordinated Indebtedness and only indebtedness of the Company Issuer that is Senior Indebtedness shall default rank senior to the Securities in accordance with the provisions set forth herein.
(b) Subject to Section 13.4, if (i) the Issuer shall Default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other Default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default Default to the Company Issuer and the Trustee by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have until, in either case, the Default has been cured or waived or shall have otherwise ceased to exist, and any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, . securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the SecuritiesSecurities other than those made in capital stock of the Issuer (or cash in lieu of fractional shares thereof).
(c) If any Default (other than a Default described in paragraph (b) of this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the Issuer and the Trustee of written notice thereof (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness specifying an election to prohibit such payment and other action by the Issuer in accordance with the following provisions of this paragraph (c), the Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) of this Section 13.1 during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Issuer may resume payments on the Securities following such Payment Blockage Period. In no event will a Payment Blockage Period extend beyond 179 days from the event ofdate of the receipt by the Trustee and the Company of the notice initiating such Payment Blockage Period. Any number of notices of a Senior Nonmonetary Default may be given during a Payment Blockage Period; provided, that no such notice shall extend such Payment Blockage Period, only one Payment Blockage Period may be commenced within any 360-day period and there shall be a period of at least 181 consecutive days in each period of 360 consecutive days when no Payment Blockage Period is in effect.
(1d) If (i) (A) without the consent of the Issuer, a receiver, conservator, liquidator or trustee of the Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of Debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Law), and is not dismissed within 60 days after such filing; or (ii) the Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of Debt, dissolution, liquidation or other relief with respect to itself or its Debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Law) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails to, or cannot, pay its creditors Debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyIssuer takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), adjustment) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceedings, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Issuer ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Issuer the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred to, to the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyIssuer or any Holder of Securities. Nothing contained herein shall impair, as between the Issuer and the Holders of Securities of each series, the obligation of the Issuer to pay to such Holders the principal of, premium, if any, and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of to receive cash, securities or other property otherwise payable or deliverable to the Company Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company Issuer and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company Issuer in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Samples: Senior Subordinated Indenture (York International Corp /De/)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree whether upon original issue or upon transfer, assignment or exchange thereof, likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, thereof is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(a) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on all Senior Indebtedness specified before the Holders of the Securities are entitled to receive any payment on account of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such Security proceedings in respect of the Securities after giving effect to any concurrent payment or distribution in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any respect of such Senior Indebtedness;
(b) In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default under clauses (5) or (6) of Section 501 hereof (under circumstances when the provisions of the foregoing clause (a) or the following clause (c) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such Security so becomes due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 502, be entitled to receive payment in full of all principal of, and premium and interest on, all such provisions Senior Indebtedness before the Holders of the Securities of such series are made entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(c) In the benefit of event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one or more to accelerate the maturity thereof, if either
(1) notice of them may enforce such provisions. In the event that default, in writing, shall have been given to the Company and to the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal or interest and within 90 days in the case of any principal other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 1501(c) in any twelve months period; or
(or 2) judicial proceedings shall be pending in respect of such default, the Holders of the Securities and the Trustee, for the benefit of the Holders of the Securities, for their benefit shall not be entitled to receive any payment on account of principal, premium, if any) , or interest on and Additional Amounts thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on, such Senior Indebtedness shall have been made or provided for. The Trustee, promptly upon receipt of any notice received by it pursuant to this Section 1501(c), shall send a copy of such notice to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security Register. In case despite the foregoing provisions, any payment or distribution shall, in any such event, be paid or delivered to any Holder of the Company when the same becomes due and payable, whether at maturity Securities or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by Trustee, for the benefit of the Holders of the Securities, before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid and delivered to the holders of Senior Indebtedness (or any trustee therefor, unless and their duly authorized representatives) until such default all Senior Indebtedness shall have been cured or waived or paid in full. The Company shall have ceased give written notice to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustmentarrangement or similar proceeding relative to the Company within the meaning of this Section 1501. Upon any payment or distribution of assets of the Company referred to in this Article XV, composition the Trustee, subject to the provisions of Section 315(a) through 315(d) of the Trust Indenture Act, and the Holders of the Securities shall be entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other similar proceeding relating liquidating agent making such payment or distribution, delivered to the CompanyTrustee or to the Holders of Securities, its creditors or its property,
(2) any proceeding for the liquidationpurpose of ascertaining the persons entitled to participate in such distribution, dissolution or the holders of the Senior Indebtedness and other winding up indebtedness of the Company, voluntary the amount thereof or involuntarypayable thereon, whether the amount or not involving insolvency amounts paid or bankruptcy proceedings,
(3) any assignment distributed thereon and all other facts pertinent thereto or to this Article XV. The Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by the Company for the benefit a person representing himself or herself to be a holder of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness (or a trustee or agent on behalf of the Company such holder) to establish that such notice has been given by a holder of Senior Indebtedness (including any interest thereon accruing after the commencement or a trustee or agent on behalf of any such proceedings) shall first be paid holder). In the event that the Trustee determines, in full before good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 1501, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, whether in cashand as to other facts pertinent to the rights of such person under this Section 1501, securities 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. For purposes of this Article, the words, “cash or other property, property or securities” shall not be made deemed to any Holder include shares of any stock or warrants to purchase shares of stock of the Securities on account thereof. Any payment Company as reorganized or distributionreadjusted, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of arrangement, reorganization or readjustment readjustment, the payment of which is subordinate, subordinated (at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securities, ) to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of which may at the Companytime be outstanding; provided, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any such arrangement, reorganization or readjustment, and (ii) the rights of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness are not, without the consent of such holders, altered by such arrangement, reorganization or readjustment. The consolidation of the Company at with, or the time outstanding, be necessary or appropriate to assure the effectiveness merger of the subordination effected by these provisionsCompany into, another corporation or the liquidation or dissolution of the Company following the sale, conveyance or transfer of all or substantially all of its property and assets to another corporation upon the terms and conditions provided in Article VIII shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section if such other corporation shall, as a part of such consolidation, merger, sale, conveyance or transfer, comply with the conditions stated in Article VIII. This Section shall be subject to the further provisions of Section 1506.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. (a) The Company covenants and agrees, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, and for purposes of Section 508 consents, that (a) the indebtedness represented by the Securities and the payment of the principal of, premium (if any) of and interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided manner, hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified and that all Securities issued hereunder shall rank pari passu with debt securities issued pursuant to the 1995 Indenture.
(b) The Trustee, the Company and the Holders of Securities hereby agree that, until all Senior Indebtedness has been paid in full, the Holders of Securities shall be permitted to retain only the following payments of principal and interest paid by the Company in respect of Securities (all such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer payments being referred to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtednessherein as "Permitted Payments"), and all such provisions payments that are made not Permitted Payments will be turned over by the Trustee or the Holders of Securities to the holder or holders of Senior indebtedness or any agent thereof or (a "Senior Agent") for the benefit of the holder or holders of Senior Indebtedness
(1) principal payment of the Securities, whether (A) at the Stated Maturity, (B) at the Company's option as provided in Article Eleven provided that the holder or holders of Senior Indebtedness or any Senior Agent has received written notice from the Company or the Trustee not later than 45 days prior to a Redemption Late, (C) pursuant to the operation of the sinking fund provisions of Article Twelve, or (D) as a result of the occurrence of a Special Redemption Event as provided in Section 1303 provided that the holder or holders of Senior Indebtedness or any Senior Agent has received written notice from the Company or the Trustee of the Special Redemption Event not later than 40 days after the occurrence of the Special Redemption Event; provided that all such principal payments are subject to the restrictions set forth in Section 1401(c) hereof;
(2) payments of interest in respect of the Securities so long as no default has occurred and is then continuing with respect to the payment of principal of or interest on the Senior Indebtedness; for such purposes, any such default which has been cured by payment or which has been waived, shall not be continuing; and
(3) principal payment of the Securities as a result of death of one or more Holders as provided in Section 1302 prior to the date on which any of the Senior Indebtedness is accelerated or the date on which any holder or holders of not less than 51% in principal amount of the outstanding Senior Indebtedness or any Senior Agent exercises any judicial or non-judicial remedy with respect to any collateral securing such Senior Indebtedness.
(c) From and after the receipt by the Trustee of a written notice (the "Default Notice") from the holder or holders of not less than 51% in principal amount of the outstanding Senior Indebtedness or any Senior Agent specifying that any default in the payment of any obligation on any Senior Indebtedness when due, whether at the stated maturity of any such payment or by declaration of acceleration, call for redemption, mandatory repurchase, payment or prepayment or otherwise (a "Senior Payment Default") has occurred, the Company may not make any principal payments described in Section 1401(b)(1) to the Holders of Securities and neither the Trustee nor the Holders of not less than 25% in principal amount of the Outstanding Securities of any series may accelerate the Maturity of such series as provided in Section 502, until the first to occur of the following:
(1) such Senior Payment Default is cured, or
(2) such Senior Payment Default is waived by the holders of such Senior Indebtedness and any one or more the senior Agent, or (3) the expiration of them may enforce such provisions. In 180 days after the event that date the Company shall default in Default Notice is received by the payment of any principal of (or premiumTrustee, if any) or interest on any the maturity of such Senior Indebtedness has not been accelerated at such time or the holder or holder's of not less than 51% in principal amount of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of outstanding Senior Indebtedness or any trustee thereforSenior Agent has not exerciser any judicial or non-judicial remedy with respect to any collateral securing such Senior Indebtedness at such time, unless and until the provisions of this Article Fourteen otherwise permit the payment at such default shall have been cured time. Upon payment in full of the Senior Indebtedness, payment of principal may be made to the Holders of Securities.
(d) Upon a payment or waived distribution to creditors of the Company in a liquidation, dissolution, or shall have ceased winding up of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to exist, no direct the Company or indirect payment its property or an assignment for the benefit of Creditors or any marshalling of the Company's assets and liabilities,
(in cash, property, securities, by set-off or otherwise1) the holders of the Senior Indebtedness shall be made or agreed entitled to be made receive payment of the full amount of the Senior Indebtedness before the Holders of any of the Securities are entitled to receive any payment on account of the principal of of, interest or interest premium on any of or Additional Amounts with respect to the indebtedness evidenced by the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,; and
(2) any proceeding for the liquidationpayment by, dissolution or other winding up distribution of the Companyassets of, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, property or securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities 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 subordinate, at least to the extent provided in these subordination provisions his Section 1401 with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness indebtedness, provided that the right of the Company at the time outstanding and to any securities issued in respect thereof under any holders of Senior Indebtedness are not impaired by such plan of reorganization or readjustment), to which would otherwise (but for these subordination provisions) be payable or deliverable in respect the Holders of any of the Securities or the Trustee would be entitled except for the provisions of any series this Section 1401 shall be paid or delivered by the Person making such 80 payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holder or holders of Senior Indebtedness or any Senior Agent, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness Indebtedness, before any payment or distribution is made to the Holders of the Company indebtedness evidenced by the Securities or to the Trustee under this indenture; and
(3) in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatevent, notwithstanding the foregoing, any payment by, or distribution of assets of, the Company of any character kind or any securitycharacter, whether in cash, property or securities or other property (other than securities 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 are is subordinate, at least to the extent provided in these subordination provisions this Section 1401 with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at the time outstanding and to any securities issued in respect thereof under any holders of Senior Indebtedness are not impaired by such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention the Holders of any of the terms hereof Securities before all Senior Indebtedness is paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over to the holder or delivered and transferred to, the holders of the such Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders or any Senior Agent, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason distribution to the holders of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to Senior Indebtedness.
(e) The Holders and the Trustee acknowledge that the holders of Senior Indebtedness and the Holders of the CompanySecurities, shallrespectively, as between are entitled to exercise certain rights and powers with respect to the Company from time to time, whether before or after an occurrence of an Event of Default, and its the exercise of any such right or power by one creditor may preclude the exercise of a similar right or power by one or more other creditors other than (any such right or power being herein called an "Exclusive Power"). To the extent that any holder or holders of Senior Indebtedness or any Senior Agent actually exercises any Exclusive Power, then the Trustee and the Holders of Securities agree to refrain from exercising any substantially similar Exclusive Power to the extent necessary to permit the holders of Senior Indebtedness to benefit from their actions.
(f) No amendment, modification, extension, replacement, restatement or substitution of the CompanySenior Indebtedness, on or of any agreement or note now or hereafter in effect pertaining to such Senior Indebtedness, shall nullify, impair, limit, alter or modify the one handprovisions of Article Fourteen of this Indenture.
(g) For purposes of this Section 1401, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness shall include all fees, expenses and costs incurred by or on behalf of the Company, and not on account holder or holders of the Securities of such series. The Trustee and Holders will take such action Senior Indebtedness or the Senior Agent in connection with the Senior Indebtedness.
(including, without limitation, the delivery of this Indenture h) Notices to an agent for the holders of Senior Indebtedness shall be made to each holder of the Company or consent Senior Indebtedness or, if holders of Senior Indebtedness have appointed a Senior Agent, then to the filing of a financing statement with respect thereto) as maysuch Senior Agent, and shall be made in the opinion of counsel designated by manner specified in the holders of a majority in principal amount of the document evidencing such holder's Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsif such a manner is so specified therein.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees that anything in this Indenture or the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities of each series is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree that (a) likewise covenants and agrees to the payment of the principal of, premium (if any) subordination herein provided and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities shall be bound by the Companyprovisions hereof. Subject to Section 1504, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that if the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company by the holders of such Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofCompany (or cash in lieu of fractional shares thereof) pursuant to Article Fourteen or otherwise made in capital stock of the Company (or cash in lieu of fractional shares thereof).
(1a) any without the consent of the Company a court having jurisdiction shall enter an order for relief with respect to the Company under the Bankruptcy Code or without the consent of the Company a court having jurisdiction shall enter a judgment, order or decree adjudging the Company as bankrupt or insolvent, or enter an order for relief for reorganization, arrangement, adjustment or composition of or in respect of the Company under the Bankruptcy Code or applicable state insolvency law, or (b) the Company shall institute proceedings for entry of an order for relief with respect to the Company under the Bankruptcy Code or for an adjudication of insolvency, bankruptcyor shall consent to the institution of bankruptcy or insolvency proceedings against it, receivershipor shall file a petition seeking, liquidation, or seek or consent to reorganization, readjustmentarrangement, composition or other similar proceeding relating relief under the Bankruptcy Code or any applicable state law, or shall consent to the Companyfiling of such petition or to the appointment of a receiver, its creditors custodian, liquidator, assignee, trustee, sequestrator or similar official of the Company or of substantially all of its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company shall make a general assignment for the benefit of creditorscreditors as recognized under the Bankruptcy Code, or
(4) any other marshalling of the assets of the Company, then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Company ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Securities and such other obligations. If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness Nothing contained herein shall impair, as between the Company and the Holders of the Securities of each series, the obligation of the Company to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the Holders. Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 1501 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture. The securing of any obligations of the Company, otherwise ranking on a parity with the Securities or consent ranking junior to the filing Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Securities or ranking junior to the Securities. SECTION 1502. Reliance on Certificate of Liquidating Agent; Further Evidence as to Ownership of Senior Indebtedness. Upon any payment or distribution of assets of the Company, the Trustee and the Holders shall be entitled to rely upon an order or decree issued by any court of competent jurisdiction in which such dissolution or winding up or liquidation or reorganization or arrangement proceedings are pending or upon a financing statement with respect thereto) as maycertificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other Person making such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the Persons entitled to participate in the opinion of counsel designated by such distribution, the holders of a majority in principal amount of the Senior Indebtedness and other indebtedness of the Company at Company, the time outstandingamount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. In the absence of any such bankruptcy trustee, receiver, assignee or other Person, the Trustee shall be necessary entitled to rely upon a written notice by a Person representing himself to be a holder of Senior Indebtedness (or appropriate a trustee or representative on behalf of such holder) as evidence that such Person is a holder of Senior Indebtedness (or is such a trustee or representative). If the Trustee determines, in good faith, that further evidence is required with respect to assure the effectiveness right of any Person as a holder of Senior Indebtedness to participate in any payment or distributions pursuant to this Article Fifteen, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the subordination effected Trustee as to the amount of Senior Indebtedness held by these provisionssuch 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 Article Fifteen, 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.
Appears in 1 contract
Samples: Indenture (Eog Resources Inc)
Securities Subordinated to Senior Indebtedness. The ---------------------------------------------- Company covenants and agrees, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with payable in respect to of each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness. In the event (a) of any distribution of assets of the Company upon any dissolution, and such provisions are made winding up, liquidation or reorganization of the Company whether in bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of the holders assets and liabilities of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of the Company which complies with the requirements of Article Eight, or (b) that a default shall default in have occurred and be continuing with respect to the payment of any principal of (or 108 premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or Additional Amounts payable in respect of any redemptionSenior Indebtedness, retirement, purchase or other acquisition of any of (c) that the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect principal of the Securities of any series shall be paid (or delivered directly to in the holders case of Senior Indebtedness Original Issue Discount Securities, the portion of the Company principal amount thereof referred to in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedingsSection 502) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least declared due and payable pursuant to the extent Section 502 and such declaration shall not have been rescinded and annulled as provided in these subordination provisions with respect to the indebtedness evidenced by the SecuritiesSection 502, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.then:
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal of, premium (if any) any and interest on and any Additional Amounts with all amounts payable in respect to of each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made whether outstanding on the date of this Indenture or thereafter incurred, assumed or guaranteed. In the event (x) of any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company whether in a bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets and liabilities of the CompanyCompany or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of the Company which complies with the requirements of Article 9, (y) that a default shall have occurred and be continuing with respect to the payment of any amount payable in respect of any Senior Indebtedness or (z) that the principal of the Securities of any Series shall have been declared due and payable pursuant to Section 5.01 and such declaration shall not have been rescinded and annulled as provided in Section 5.01, then:
(a) in a circumstance described in the foregoing clause (x) or (y) the holders of all Senior Indebtedness, and in the circumstance described in the foregoing clause (z) the holders of all Senior Indebtedness the principal of the Company (including any interest thereon accruing after the commencement of any such proceedings) which shall have been so declared due and payable, shall first be paid in entitled to receive payment of the full amount due thereon, or provision shall be made for such payment, before the Holders of any of the Securities are entitled to receive any payment in respect of the indebtedness evidenced by the Securities;
(b) any payment by, or distributiondistribution of assets of, the Company of any kind or character, whether in cash, property or securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities 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 subordinate, at least to the extent provided in these subordination provisions this Article 14 with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at holders of the time outstanding and to any securities issued in respect thereof under any Senior Indebtedness are not altered by such plan of reorganization or readjustment), to which would otherwise (but for these subordination provisions) be payable or deliverable in respect the Holders of any of the Securities would be entitled except for the provisions of any series this Article 14 shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Company indebtedness evidenced by the Securities under this Indenture; and
(including any interest thereon accruing after the commencement of any such proceedingsc) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Company of any character kind or any securitycharacter, whether in cash, property or securities or other property (other than securities 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 are is subordinate, at least to the extent provided in these subordination provisions this Article 14 with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at the time outstanding and to any securities issued in respect thereof under any holders of Senior Indebtedness are not altered by such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention Holders of any of the terms hereof Securities before all Senior Indebtedness is paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of the Company at the time outstanding in accordance with the priorities then existing among such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Samples: Indenture (Fluor Corp)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees that anything in this Indenture or the Securities of any Series to the contrary notwithstanding, the indebtedness evidenced by the Securities of each Series is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein, and each Holder of a SecuritySecurities of each Series, by his acceptance thereof, agree that (a) whether upon original issue or upon transfer or assignment thereof, likewise covenants and agrees to the payment of the principal of, premium (if any) subordination herein provided and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities shall be bound by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indentureprovisions hereof. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that If the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity Maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off setoff or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, on, or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofCompany (or cash in lieu of fractional shares thereof).
(1a) any without the consent of the Company a court having jurisdiction shall enter an order for relief with respect to the Company under the Bankruptcy Code or without the consent of the Company a court having jurisdiction shall enter a judgment, order or decree adjudging the Company a bankrupt or insolvent, or enter an order for relief for reorganization, arrangement, adjustment or composition of or in respect of the Company under the Bankruptcy Code or applicable -56- state insolvency law, or (b) the Company shall institute proceedings for entry of an order for relief with respect to the Company under the Bankruptcy Code or for an adjudication of insolvency, bankruptcyor shall consent to the institution of bankruptcy or insolvency proceedings against it, receivershipor shall file a petition seeking, liquidation, or seek or consent to reorganization, readjustmentarrangement, composition or other similar proceeding relating relief under the Bankruptcy Code or any applicable state law, or shall consent to the Companyfiling of such petition or to the appointment of a receiver, its creditors custodian, liquidator, assignee, trustee, sequestrator or similar official (other than a custodian pursuant to 8 Delaware Code (S)226 or any similar statute under other state laws) of the Company or of substantially all of its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company shall make a general assignment for the benefit of creditorscreditors as recognized under the Bankruptcy Code, or
(4) any other marshalling of the assets of the Company, then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), ) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series Series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holder of the Securities, together with the holders of any obligation of the Company ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior in right of payment to the Securities and such other obligations. If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder Nothing contained herein shall impair, as between the Company and the Holders of any Senior Indebtedness Securities of each Series, the obligation of the Company shall be prejudiced in to pay to such Holders the right principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to enforce subordination the rights of the indebtedness evidenced by the Securities by any act or failure to act on the part holders of the CompanySenior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the Holders. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series Series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series Series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, shall as between the Company and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such seriesSeries. The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture. The securing of any obligations of the Company, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Samples: Indenture (Dean Foods Co)
Securities Subordinated to Senior Indebtedness. (1) The Company Company, for itself, its successors and assigns, covenants and agrees, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal ofof and premium, premium (if any) , and interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that Company.
(2) If (A) the Company shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (B) any other default shall occur with respect to Senior Indebtedness of the Company and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company and the Trustee by the holders of Senior Indebtedness of the Company or any trustee therefortherefore, unless and until such until, in either case, the default shall have has been cured or waived or shall have has ceased to existexists, or, any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or Securities other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up than those made in Capital Stock of the Company, voluntary Company (or involuntary, whether or not involving insolvency or bankruptcy proceedings,cash in lieu of fractional shares thereof).
(3) If any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property default occurs (other than securities a default descried in paragraph (2) of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof this Section 14.1) under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company Company, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or at the time outstanding in accordance with expiration of any applicable grace periods (a "Senior Nonmonetary Default"), then, upon the priorities then existing among such holders for application to the payment of all Senior Indebtedness of receipt by the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of and the Trustee of written notice thereof (a "Payment Blockage Notice") from or any Holder to endorse or assign any such payment, distribution or security, each holder on behalf of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon specifying an election to prohibit such payment and other action by the Company in accordance with the following provisions of this paragraph (3), the Company may not make any payment in full or take any other action that would be prohibited by paragraph (2) of all this Section 14.1 during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Blockage Notice and ending on the earlier of (A) the date, if any, on which the holders of such Senior Indebtedness of or their representative notifies the Company, the Holders of Securities of each series shall be subrogated Trustee that such Senior Nonmonetary Default is cured or waived or ceases to all rights of any holders of Senior Indebtedness of the Company to receive any further payments exist or distributions applicable to the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (B) the 179th day after the date of receipt of such Payment Blockage Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Company until the indebtedness evidenced by may resume payments on the Securities of following such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsPayment Blockage Period.
Appears in 1 contract
Samples: Indenture (Comstock Resources Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees that anything in this Indenture to the contrary notwithstanding, the indebtedness evidenced by the Securities of each series is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein or, if so provided in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Sections 201 and 301 by or pursuant to which the form and terms of the Securities of such series were established, as and to the extent provided by the terms of the Securities of such series, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree that (a) likewise covenants and agrees to the payment subordination herein or therein provided and shall be bound by the provisions hereof or thereof. The provisions of the principal of, premium (if any) and interest on and this Article Sixteen applicable to any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption series of Securities by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of Senior Indebtedness, and such Senior Indebtedness holders are made obligees hereunder and any one or more of them may enforce such provisions. In No payment may be made by the Company on account of the principal of or any premium or interest on the Securities, or to acquire any of the Securities (including repurchases of Securities at the option of the Holders) for cash or property (other than Junior Securities), or on account of any redemption provisions of the Securities, (i) upon the maturity of any Senior Indebtedness of the Company by lapse of time, acceleration (unless waived) or otherwise, unless and until all principal of and any premium and interest on such Senior Indebtedness are first paid in full (or such payment is duly provided for) or (ii) in the event that the Company shall of default in the payment of any principal of (or premium, if any) any premium or interest on any Senior Indebtedness of the Company when the same it becomes due and payable, whether at stated maturity or at a date fixed for prepayment or by declaration or otherwiseotherwise (a "Payment Default"), then, upon written notice unless and until such Payment Default has been cured or waived or otherwise has ceased to exist. Upon (i) the happening of such an event of default to the Company by (other than a Payment Default) that permits the holders of Senior Indebtedness or any trustee therefortheir representative immediately to accelerate its maturity and (ii) written notice of such event of default given to the Company and the Trustee by the holders of at least 25% in aggregate principal amount outstanding of such Senior Indebtedness or their representative (a "Payment Notice"), then, unless and until such event of default shall have has been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Securities issued hereunder by such Xxxxxx's acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to the provisions of this Article 5; and each Person holding any Security, by his acceptance whether upon original issue or upon transfer or assignment thereof, agree that (a) accepts and agrees to be bound by such provisions. The Securities shall not be superior, or subordinate in right of payment, to the May 1996 Debentures. The Company shall not be limited in its rights to make principal and interest payments on, or redemptions of the May 1996 Debentures on the dates required by and in accordance with the terms of the May 1996 Debentures and the May 1996 Indenture even if, after such payments on or redemptions of the May 1996 Debentures, the Company may not have sufficient funds to make principal and interest payments on, or redemptions required by Article 3 of this Indenture of, the Securities, to be made thereafter under the terms of the Securities and this Indenture. The payment of the principal of, premium (premium, if any) , and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinatedissued hereunder shall, to the extent and in the manner provided hereinafter set forth, be subordinated and subject in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the indefeasible prior payment in full full, in xxxx, of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company outstanding at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery date of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as maythereafter created, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstandingincurred, be necessary assumed or appropriate to assure the effectiveness of the subordination effected by these provisionsguaranteed.
Appears in 1 contract
Samples: Convertible Subordinated Debenture Indenture (Birner Dental Management Services Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree that (a) the payment of the principal oflikewise covenants and agrees, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinatedthat, to the extent and in the manner provided hereinafter set forth in such Security this Article 10, the indebtedness represented by the Securities and all Payments or Distributions in Respect of the supplemental indenture pursuant to which such Security is issued, Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness. If at any time following the payment of any amount to a holder of Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer with respect to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, such payment is rescinded or must otherwise be returned by such holder upon the insolvency, bankruptcy, reorganization, dissolution or liquidation of the Company or any other Person or otherwise, and is so rescinded or returned to the party or parties making such payment, such Senior Indebtedness shall be reinstated to the extent of such payment and the provisions of this Article 10 shall be applicable as if such payment were never made. The provisions of this Article 10 are made for the benefit of the holders of such Senior Indebtedness Indebtedness, and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any each Holder of the Securities, or in respect of any redemption, retirement, by his purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company hereby agrees for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the that his Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal are subject to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsArticle 10.
Appears in 1 contract
Samples: Supplemental Indenture (Integrated Health Services Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, thereof is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on all Senior Indebtedness specified before the Holders of the Securities are entitled to receive any payment on account of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such Security proceedings in respect of the Securities after giving effect to any concurrent payment or distribution in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any respect of such Senior Indebtedness, except securities which are subordinate and junior in right of payment to the payment of all Senior Indebtedness then outstanding;
(2) In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (1) or the following clause (3) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such provisions Security so becomes due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 502, be entitled to receive payment in full of all principal of, and premium and interest on, all such Senior Indebtedness before the Holders of the Securities of such series are made entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(3) In the benefit of event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one to accelerate the maturity thereof, if either
(a) notice of such default, in writing or more of them may enforce such provisions. In the event that by telegram, shall have been given to the Company and to the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal or interest and within 90 days in the case of any principal other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 1501(3) in any twelve months period, or
(or b) judicial proceedings shall be pending in respect of such default, the Holders of the Securities and the Trustee for their benefit shall not be entitled to receive any payment on account of principal, premium, if any) , or interest on and Additional Amounts thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on, such Senior Indebtedness shall have been made or provided for. The Trustee, forthwith upon receipt of any notice received by it pursuant to this Section 1501(3), shall, as soon as practicable, send a notice thereof to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security Register. In case despite the foregoing provisions, any payment or distribution shall, in any such event, be paid or delivered to any Holder of the Company when the same becomes due and payable, whether at maturity Securities or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by Trustee for their benefit before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid and delivered to the holders of Senior Indebtedness (or any trustee therefor, unless and their duly authorized representatives) until such default all Senior Indebtedness shall have been cured or waived or paid in full. The Company shall have ceased give written notice to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition arrangement or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after within the commencement meaning of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereofthis Section 1501. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, Upon any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities assets of the Company or any other corporation provided for by a plan of reorganization or readjustment referred to in this Article Fifteen, the payment of which are subordinateTrustee, at least subject to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Section 315(a) through 315(b) of the Company at Trust Indenture Act, and the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), Holders of the Securities shall be received by entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered to the Trustee or any Holder in contravention to the Holders of any of the terms hereof such payment or distribution or security shall be received in trust Securities, for the benefit of, and shall be paid over or delivered and transferred topurpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the and other indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. The Trustee shall be subrogated entitled to all rights conclusively rely on the delivery to it of any holders a written notice by a person representing himself to be a holder of Senior Indebtedness of the Company to receive any further payments (or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities a trustee or agent on behalf of such series shall have holder) to establish that such notice has been paid in full, and such payments or distributions received given by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the Companyevent that the Trustee determines, shallin good faith, that further evidence is required with respect to the right of any person as between the Company and its creditors other than the holders a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 1501, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Company, on Trustee as to the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account amount of Senior Indebtedness of held by such person, as to the Companyextent to which such person is entitled to participate in such payment or distribution, and not on account of as to other facts pertinent to the Securities rights of such series. The Trustee person under this Section 1501, and Holders will take if such action (including, without limitationevidence is not furnished, the delivery of this Indenture Trustee may defer any payment to an agent for the holders of Senior Indebtedness of the Company or consent such person pending judicial determination as to the filing right of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate such person to assure the effectiveness of the subordination effected by these provisionsreceive such payment.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySubordinated Securities, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Subordinated Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Subordinated Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Subordinated Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Subordinated Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(a) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on, or other amounts in respect of, all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer before the Holders of the Subordinated Securities are entitled to all Persons whoreceive any payment on account of principal, in reliance upon such provisionspremium, become holders ofif any, or continue interest upon the Subordinated Securities, and to holdthat end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Subordinated Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such proceedings in respect of the Subordinated Securities after giving effect to any concurrent payment or distribution in respect of such Senior Indebtedness, except for any payment or distribution of (i) securities which are subordinate and junior in right of payment to the payment of all Senior Indebtedness then outstanding and (ii) funds from a defeasance trust created pursuant to this Indenture (“Exempted Distributions”). If after we have made such payments with respect to Senior Indebtedness, (i) there are amounts available for payment on the Subordinated Securities (“Excess Proceeds”) and (ii) at such time, any creditors in respect of Other Company Obligations have not received their full payments, then the Company shall first use such Excess Proceeds to pay in full all Other Company Obligations before making any payment of principal, premium, if any, or interest on the Subordinated Securities of any series
(b) In the event that the Subordinated Securities of any series are declared or otherwise become due and payable before their expressed maturity because of the occurrence of certain Events of Default hereunder (under circumstances when the provisions of the foregoing clause (a) or the following clause (c) shall not be applicable), then the holders of Senior Indebtedness outstanding at the time such Subordinated Securities so become due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 5.01, be entitled to receive payment in full of all principal of, and premium and interest on or other amounts in respect of, all such Senior Indebtedness before the Holders of such Subordinated Securities are made entitled to receive any payment on account of principal of, premium, if any, or interest on, such Subordinated Securities; provided, however, nothing herein shall prevent the Holders of Subordinated Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(c) In the benefit of event that any default shall occur and be continuing, in each case, with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one or more to accelerate the maturity thereof, if either
(i) written notice of them may enforce such provisions. In the event that default shall have been received by the Company and the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal, premium, if any, or interest and within 90 days in the case of any other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 14.01(c) in any twelve month period, or
(ii) judicial proceedings shall be pending in respect of such default, then the Holders of the Subordinated Securities and the Trustee for the benefit of the Holders shall not be entitled to receive any payment on account of principal of (thereof, or premium, if any) , or interest on thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on, or other amounts in respect of, such Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity shall have been made or at a date fixed provided for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist. The Trustee, no direct forthwith upon receipt of any notice received by it pursuant to this Section 14.01(c), shall, as soon as practicable, send a notice thereof to each Holder of Subordinated Securities at the time outstanding as the names and addresses of such Holders appear on the Security register. In case despite the foregoing provisions, any payment or indirect distribution other than Exempted Distributions shall, in any such event, be paid or delivered to any Holder of the Subordinated Securities or to the Trustee for its benefit before all Senior Indebtedness shall have been paid in full, such payment (in cash, property, securities, by set-off or otherwise) distribution shall be made held in trust for and so paid and delivered to the holders of Senior Indebtedness (or agreed their duly authorized representatives) until all Senior Indebtedness shall have been paid in full. The Company shall give written notice to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition arrangement or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan voluntary liquidation, dissolution or winding up proceeding within the meaning of reorganization this Section 14.01. Upon any payment or readjustment the payment distribution of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness assets of the Company at referred to in this Article 14, the time outstanding and Trustee, subject to any securities issued in respect thereof under any such plan the provisions of reorganization or readjustment), which would otherwise (but for these subordination provisionsSection 315(a) be payable or deliverable in respect through 315(b) of the Trust Indenture Act, and the Holders of the Subordinated Securities of any series shall be paid entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered directly to the Trustee or to the Holders of the Subordinated Securities, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company in accordance with Company, the priorities then existing among amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 14. The Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a person representing (as evidenced by such holders until all holder to the satisfaction of the Trustee) itself to be a holder of Senior Indebtedness or Other Company Obligations (or a trustee or agent on behalf of such holder similarly as evidenced to the satisfaction of the Trustee) to establish that such notice has been given by a holder of Senior Indebtedness or Other Company Obligations (including any interest thereon accruing after the commencement or a trustee or agent on behalf of any such proceedings) shall have been paid holder). In the event that the Trustee determines, in fullgood faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness or Other Company Obligations to participate in any payment or distribution pursuant to this Section 14.01, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness or Other Company Obligations 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 14.01, and if such evidence is not furnished, the Trustee may defer any payment or distribution to such person pending judicial determination as to the right of such person to receive such payment or distribution. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any character kind or any securitycharacter, whether in cash, securities property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other property (other than securities indebtedness of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, being subordinate to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment)Subordinated Securities, shall be received by the Trustee or any Holder in contravention of any Holders of the terms hereof such payment or distribution or security shall be received in trust for the benefit ofSubordinated Securities which, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment terms of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall this Article 14 should be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed payable to the holders of Senior Indebtedness or Other Company Obligations and if such fact shall, at or prior to the time of such payment or distribution, have been actually known by the Trustee or, as the case may be such Holder, then upon such actual knowledge, such payment or distribution shall be paid over by the Trustee or such Holders, as the case may be, to the holders of such Senior Indebtedness or Other Company Obligations (or the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment of assets of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions).
Appears in 1 contract
Samples: Indenture (First Busey Corp /Nv/)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees that anything in this Indenture to the contrary notwithstanding, the indebtedness evidenced by the Securities of each series is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein or, if so provided in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Sections 201 and 301 by or pursuant to which the form and terms of the Securities of such series were established, as and to the extent provided by the terms of the Securities of such series, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree that (a) likewise covenants and agrees to the payment of the principal of, premium (if any) subordination herein or therein provided and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities shall be bound by the Companyprovisions hereof or thereof. Subject to Section 1604, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that if the Company shall default in the payment of any principal of (or premium, if any) premium or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity Stated Maturity or at a date fixed for prepayment redemption or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company by the holders of such Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or any premium or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or Securities other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness than those made in capital stock of the Company (including any interest thereon accruing after the commencement or cash in lieu of any such proceedingsfractional shares thereof) shall first be paid pursuant to Article Fifteen or otherwise made in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness capital stock of the Company (including any interest thereon accruing after the commencement or cash in lieu of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustmentfractional shares thereof), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. (a) The Company agrees, and each Holder of a Securitythe Securities by acceptance thereof likewise agrees, by his acceptance thereof, agree that (a) the payment of the principal of, premium (premium, if any) , and interest interest, if any, on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedthis Article 12, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders Company.
(b) All provisions of such Senior Indebtedness and any one or more this Article 12 shall be subject to Section 12.14. -84- 92
(a) Upon the maturity of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payableby lapse of time, whether at maturity or at a date fixed for prepayment or by declaration acceleration or otherwise, all obligations with respect thereto shall first be paid in full, or such payment duly provided for in cash or in a manner satisfactory to the holders of such Senior Indebtedness, before any payment is made on account of the principal of, premium, if any, or interest, if any, on the Securities or to redeem, retire, purchase, deposit moneys for the defeasance of or acquire any of the Securities.
(b) Upon the happening of (i) any default in payment of any Senior Indebtedness of the Company or (ii) any other default on Senior Indebtedness of the Company and the maturity of such Senior Indebtedness is accelerated in accordance with its terms, then, unless (w) such default relates to Senior Indebtedness of the Company in an aggregate amount equal to or less than $20 million, (x) such default shall have been cured or waived or shall have ceased to exist, (y) any such acceleration has been rescinded, or (z) such Senior Indebtedness has been paid in full, no direct or indirect payment in cash, property or securities, by set-off or otherwise (except payment of the Securities from funds previously deposited in accordance with Section 4.1 at any time such deposit was not prohibited by this Indenture), shall be made or agreed to be made by the Company on account of the principal of, premium, if any, or interest, if any, on the Securities, or in respect of any redemption, retirement, purchase, deposit of moneys for the defeasance or other acquisition of any of the Securities in the case of such a default in Senior Indebtedness of the Company, the Company shall not deposit money for any such payment or distribution with the Trustee or any Paying Agent nor shall the Company (if the Company is acting as its own Paying Agent) segregate and hold in trust money for any such payment or distribution.
(c) Upon the happening of an event of default (other than under circumstances when the terms of paragraph (b) of this Section 12.2 are applicable) with respect to any Senior Indebtedness of the Company pursuant to which the holders thereof are entitled under the terms of such Senior Indebtedness to immediately accelerate the maturity thereof (without further notice or expiration of any applicable grace periods), upon written notice thereof given to each of such default to the Company and the Trustee by the trustee for or other representative of the holders of at least $25 million of Senior Indebtedness or any trustee thereforof the Company (a "Payment Notice"), then, unless and until such event of default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, property or securities, by set-off or otherwise) otherwise (except payment of the Securities from funds previously deposited in accordance with Section 4.1 at any time such deposit was not prohibited by this Indenture), shall be made or agreed to be made by the Company on account of the principal of or interest premium, if any, or interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase purchase, deposit of moneys for the defeasance or other acquisition of any of the Securities, and the Company shall not deposit money for any such payment or distribution with the Trustee or any Paying Agent nor shall the Company or a Subsidiary (if the Company or such Subsidiary is acting as Paying Agent) segregate and hold in trust money for any such payment or distribution (a "Payment Block"); provided, however, that this Section 12.2(c) shall not prevent the making of any payment for more than 120 days after a Payment Notice shall have been given unless the Senior Indebtedness in respect of which such event of default exists has been declared due and payable in its entirety, in which case no such payment shall be made until such acceleration has been rescinded or annulled or such Senior Indebtedness has been paid in full in accordance with its terms. In Notwithstanding the foregoing, (i) not more than one Payment Notice shall be given with respect to a particular event of
of default (1which shall not bar subsequent Payment Notices for other such events of default), (ii) all events of default under Senior Indebtedness occurring within any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition 30-day period shall be treated as one event of default to the extent that one or other similar proceeding relating more Payment Notices are issued in connection therewith and (iii) no more than two Payment Blocks shall be permitted within any period of 12 consecutive months. Any payment made in contravention of the provisions of this Section 12.2(c) shall be returned to the Company, its creditors or its property,.
(2d) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoingprovisions of Section 12.2(a) or 12.2(b), the Trustee or the Holder of any Security shall have received any payment on account of the principal of or distribution premium, if any, or interest, if any, on the Securities in contravention of Section 12.2(a) or 12.2(b) or after the happening of a default in payment of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at Company, or any acceleration of the time outstanding and to maturity of any securities issued Senior Indebtedness of the Company, then, in respect thereof under either such case, except in the case of any such plan default which shall have been cured or reorganization waived or readjustment)shall have ceased to exist, such payment (subject to the provisions of Sections 12.6 and 12.7) shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust held for the benefit of, and shall be paid over or and delivered and transferred to, the holders of the such Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among (pro rata as to each of such holders on the basis of the respective amounts of Senior Indebtedness of the Company held by them) or their representative or the trustee under the indenture or other agreement (if any) pursuant to which Senior Indebtedness of the Company may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, unpaid to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee full in accordance with its terms, after giving effect to any concurrent payment or any Holder distribution to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to for the holders of Senior Indebtedness of the Company.
(1) Upon the occurrence of an Event of Default under Section 5.1(1) through (3) and (6), shall, as between the Trustee or holders of 25% of the outstanding principal amount of the Securities of any series must give notice of such Event of Default and the intention to accelerate to the Company and its creditors any holders of Senior Indebtedness which have theretofore requested of the Trustee such notice, and no acceleration of the Securities of any series shall be effective unless and until such Event of Default is continuing on the sixtieth day after the date of delivery of such notice. The Company may pay the holders of the Securities of any series any defaulted payment and all other than amounts due following any such acceleration of the maturity of the Securities if Section 12.2(a) would not prohibit such payment to be made at that time.
(2) Nothing in this Article 12 shall prevent or delay the Trustee or the holders of the Securities from taking any action in connection with the acceleration of the maturity of the Securities pursuant to Section 5.2 upon the occurrence of an Event of Default under either of Section 5.1(4) or 5.1(5).
(3) Except as provided in Section 12.2(e)(1), a failure to make any payment with respect to the Securities as a result of the rights of holders of Senior Indebtedness of the Company, Company described in Section 12.2(b) or 12.2(c) will not have any effect on the one hand, and right of holders of the Securities to accelerate the maturities thereof as a result of such Holders, payment default. The Company shall give prompt written notice to the Trustee of any default in the payment of principal of or interest on the other hand, be deemed to be a payment by the Company on account of any Senior Indebtedness of the Company, and not on account in the event of any such default, shall provide to the Trustee, in the form of an Officers' Certificate, the names, addresses and respective amounts due holders of such Senior Indebtedness or the name and address of the Securities of such seriestrustee acting on their behalf, if any. The Trustee and Holders will take shall be entitled to rely conclusively on such action (including, Officers' Certificate without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsindependent verification.
Appears in 1 contract
Samples: Indenture (Ual Corp Capital Trust I)
Securities Subordinated to Senior Indebtedness. The Company Issuer covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal of, premium (if any) of and interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment (a) of any principal of (insolvency or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness bankruptcy proceedings or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition reorganization or other similar proceeding relating to proceedings in respect of the Company, its creditors Issuer or a substantial part of its property,
(2) , or of any proceeding proceedings for the liquidation, dissolution or other winding up of the Company, voluntary or involuntaryIssuer, whether or not involving insolvency or bankruptcy proceedings,
bankruptcy, or (3b) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least subject to the extent provided in these subordination provisions of Section 13.2 that (i) a default shall have occurred with respect to the indebtedness evidenced by the Securitiespayment of principal of or interest on or other monetary amounts due and payable on any Senior Indebtedness, to or (ii) there shall have occurred an event of default (other than a default in the payment of all Senior Indebtedness of the Company at the time outstanding principal or interest or other monetary amounts due and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisionspayable) be payable or deliverable in respect of any Senior Indebtedness, as defined therein or in the instrument under which the same is outstanding, permitting the holder or holders thereof to accelerate the maturity thereof (with notice or lapse of time, or both), and such event of default shall have continued beyond the period of grace, if any, in respect thereof, and, in the cases of subclauses (i) and (ii) of this clause (b), such default or event of default shall not have been cured or waived or shall not have ceased to exist, or (c) that the principal of and accrued interest on the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least declared due and payable pursuant to the extent Section 5.1 and such declaration shall not have been rescinded and annulled as provided in these subordination provisions with respect to the indebtedness evidenced by the SecuritiesSection 5.1, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.then:
Appears in 1 contract
Samples: Subordinated Debt Indenture (Transcanada Pipelines LTD)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on each and any Additional Amounts all of the Securities (except as set forth in this Article Twelve with respect to each Permitted Payments) is hereby expressly subordinate and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinatedjunior, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security Indebtedness.
(a) Upon any distribution of the Company's assets upon any dissolution, winding-up, liquidation or reorganization, or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons whobankruptcy, in reliance upon such provisionsinsolvency, become holders receivership or similar proceedings, payment of the principal of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or , interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (all other obligations in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any respect of the Securities, or in respect including by way of any redemption, retirement, purchase acquisition or other acquisition purchase thereof, on the Securities (except for Permitted Payments and payments the Company may choose to make comprised solely of any Permitted Junior Securities acceptable to the Holders) will be subordinated in right of payment to the Securities. In the event of
(1) any insolvencyprior payment in full, bankruptcy, receivership, liquidation, reorganization, readjustment, composition in cash or other similar proceeding relating payment satisfactory to the Companyholders of Senior Indebtedness, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of all of the Company's existing and future Senior Indebtedness. For purposes of this Article Twelve, voluntary or involuntarythe words, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in "cash, securities or other property, " shall not be made deemed to any Holder include shares of any stock of the Securities on account thereof. Any payment Company as reorganized or distributionreadjusted, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment readjustment, the payment of which is subordinate, subordinated at least to the extent provided in these subordination provisions this Article Twelve with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company which may at the time outstanding and to be outstanding; provided that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise and (but for these subordination provisionsii) be payable or deliverable in respect the rights of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company in accordance with with, or the priorities then existing among such holders until all Senior Indebtedness merger of the Company (including any interest thereon accruing after into, another Person or the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment liquidation or distribution of any character or any security, whether in cash, securities or other property (other than securities dissolution of the Company following the conveyance or any other corporation transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company Article Five shall not be deemed to have been paid in full unless a dissolution, winding-up, liquidation or reorganization for the holders thereof shall have received cash, securities or purposes of this Section 12.1(a) if such other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, Person shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities part of such series. The Trustee and Holders will take such action (includingconsolidation, without limitationmerger, conveyance or transfer, comply with the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, conditions stated in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsArticle Five.
Appears in 1 contract
Samples: Indenture (Scios Inc)
Securities Subordinated to Senior Indebtedness. (a) The Company Issuers covenant and agree, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness but the Securities shall in all respects rank pari passu with all other Senior Subordinated Indebtedness. The Securities shall rank senior to all existing and any one or more future Indebtedness that is neither Senior Indebtedness nor Senior Subordinated Indebtedness and only Indebtedness of them may enforce an Issuer that is Senior Indebtedness of such provisions. In Issuer shall rank senior to the event that Securities in accordance with the Company provisions set forth herein.
(b) Subject to Section 13.4, if (i) either Issuer shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company such Issuer when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness of such Issuer and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to such Issuer and the Company Trustee by the holders of Senior Indebtedness of such Issuer or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived or shall have has ceased to exist, or, any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event ofSecurities other than those made in capital stock of TEL (or cash in lieu of fractional shares thereof).
(1c) If any default (other than a default described in paragraph (b) of this Section 13.1) shall occur under the Senior Indebtedness of an Issuer, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by such Issuer and the Trustee of written notice thereof (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness specifying an election to prohibit such payment and other action by such Issuer in accordance with the following provisions of this paragraph (c), such Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) of this Section 13.1 during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, such Issuer may resume payments on the Securities following such Payment Blockage Period.
(d) If (i) (A) without the consent of an Issuer, a receiver, conservator, liquidator or trustee of such Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) such Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against such Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Code), and is not dismissed within 60 days after such filing; or (ii) an Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of debt, dissolution, liquidation or other relief with respect to itself or its debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Code) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails generally to, or cannot, pay its creditors debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidationSubsidiary of an Issuer takes, dissolution suffers or other winding up permits to exist any of the Companyevents or conditions referred to in the foregoing clause (i) or (ii), voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, then all Senior Indebtedness of the Company such Issuer (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made by any Issuer to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company such Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company at the time such Issuer then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), adjustment) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company such Issuer in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company such Issuer (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness of such Issuer, the Holders of the Securities, together with the holders of any obligations of such Issuer ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of such Issuer the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of such Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company such Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time such Issuer then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred to, to the holders of the Senior Indebtedness of the Company at the time such Issuer then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company such Issuer remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company such Issuer in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company such Issuer is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company such Issuer shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of such an Issuer or any Holder of Securities. Nothing contained herein shall impair, as between the Company. Issuers and the Holders of Securities of each series, the obligation of each of the Issuers to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of such Issuer to remove cash, securities or other property otherwise payable or deliverable to the Company Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company such Issuer then outstanding. Upon the payment in full of all Senior Indebtedness of the Companyan Issuer, the Holders of Securities of each series shall be subrogated to all rights of any holders of such Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the such Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of such Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company such Issuer and its creditors other than the holders of such Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company such Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company Issuers in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture.
(i) The securing of any obligations of the Issuers, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with payable in respect to of each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness. In the event (a) of any distribution of assets of the Company upon any dissolution, and such provisions are made winding up, liquidation or reorganization of the Company whether in bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of the holders assets and liabilities of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of the Company which complies with the requirements of Article Eight, or (b) that a default shall default in have occurred and be continuing with respect to the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or Additional Amounts payable in respect of any redemptionSenior Indebtedness, retirement, purchase or other acquisition of any of (c) that the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect principal of the Securities of any series shall be paid (or delivered directly to in the holders case of Senior Indebtedness Original Issue Discount Securities, the portion of the Company principal amount thereof referred to in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedingsSection 502) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least declared due and payable pursuant to the extent Section 502 and such declaration shall not have been rescinded and annulled as provided in these subordination provisions with respect to Section 502, then:
(1) in a circumstance described in the indebtedness evidenced by foregoing clause (a) or (b) the Securitiesholders of all Senior Indebtedness, to and in the payment circumstance described in the foregoing clause (c) the holders of all Senior Indebtedness of the Company (other than Other Obligations) outstanding at the time outstanding and to any securities issued the principal of such Securities (or in respect thereof under any the case of Original Issue Discount Securities, such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any portion of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series principal amount) shall have been paid in fullso declared due and payable, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would shall first be paid or distributed entitled to the holders of Senior Indebtedness receive payment of the Company, shall, as between the Company and its creditors other than the holders full amount due thereon in respect of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.principal,
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. (1) The Company agrees, and each Holder of a Security, the Securities by his acceptance thereofthereof likewise agrees, agree that (a) the payment of the principal of, premium (premium, if any) , and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect all of the Securitiesforegoing, including on account a "Payment or Distribution") shall be subordinated and subject in right of the acquisition or redemption of Securities by the Company, is subordinatedpayment, to the extent and in the manner provided in such Security or this Article 12, except as provided in the supplemental indenture pursuant to which such Security is issuedArticle 8, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for whether outstanding on the benefit of the holders of such Senior Indebtedness and date hereof or hereafter incurred. A Payment or Distribution shall include any one or more of them may enforce such provisions. In the event that the Company shall default in the payment asset of any principal kind or character, and may consist of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, securities or other property, securities, by set-off or otherwise) , and shall be made or agreed to be made on account of the principal of or interest on include, without limitation, any of the Securitiespurchase, or in respect of any redemption, retirement, purchase redemption or other acquisition of Securities or the making of any deposit of the Securities. In the event of
funds or securities pursuant to this Indenture (1) including, without limitation, any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating deposit pursuant to the Company, its creditors or its property,Article 8 hereof).
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any The Senior Indebtedness of the Company shall continue to be prejudiced Senior Indebtedness and entitled to the benefit of these subordination provisions irrespective of any amendment, modification or waiver of any term of any instrument relating to refinancing of the Senior Indebtedness.
(3) All the provisions of this Indenture and the Securities shall be subject to the provisions of this Article 12 so far as they may be applicable thereto, except that nothing in this Article 12 shall apply to claims for, or payments to, the Trustee under or pursuant to Section 7.07.
(4) No right of any holder of any Senior Indebtedness to enforce subordination of the indebtedness evidenced by the Securities as herein provided shall at any time or in any way be affected or impaired by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Companyany Paying Agent, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments Securities, the Trustee or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of the Senior Indebtedness of Indebtedness, or by any noncompliance by the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitationany Paying Agent, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.Holders of
Appears in 1 contract
Samples: Indenture (National Healthcare Corp)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, thereof is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on all Senior Indebtedness specified before the Holders of the Securities are entitled to receive any payment on account of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such Security proceedings in respect of the Securities after giving effect to any concurrent payment or distribution in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any respect of such Senior Indebtedness, except securities which are subordinate and junior in right of payment to the payment of all Senior Indebtedness then outstanding;
(2) In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (1) or the following clause (3) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such provisions Security so becomes due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 502, be entitled to receive payment in full of all principal of, and premium and interest on, all such Senior Indebtedness before the Holders of the Securities of such series are made entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(3) In the benefit of event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one to accelerate the maturity thereof, if either
(A) notice of such default, in writing or more of them may enforce such provisions. In the event that by telegram, shall have been given to the Company and to the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal or interest and within 90 days in the case of any principal other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 1601(3) in any twelve months period, or
(or B) judicial proceedings shall be pending in respect of such default, the Holders of the Securities and the Trustee for their benefit shall not be entitled to receive any payment on account of principal, premium, if any) , or interest on and Additional Amounts thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on, such Senior Indebtedness shall have been made or provided for. The Trustee, forthwith upon receipt of any notice received by it pursuant to this Section 1601(3), shall, as soon as practicable, send a notice thereof to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security Register. In case despite the foregoing provisions, any payment or distribution shall, in any such event, be paid or delivered to any Holder of the Company when the same becomes due and payable, whether at maturity Securities or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by Trustee for their benefit before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid and delivered to the holders of Senior Indebtedness (or any trustee therefor, unless and their duly authorized representatives) until such default all Senior Indebtedness shall have been cured or waived or paid in full. The Company shall have ceased give written notice to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition arrangement or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after within the commencement meaning of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereofthis Section 1601. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, Upon any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities assets of the Company or any other corporation provided for by a plan of reorganization or readjustment referred to in this Article Fifteen, the payment of which are subordinateTrustee, at least subject to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Section 315(a) through 315(b) of the Company at Trust Indenture Act, and the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), Holders of the Securities shall be received by entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered to the Trustee or any Holder in contravention to the Holders of any of the terms hereof such payment or distribution or security shall be received in trust Securities, for the benefit of, and shall be paid over or delivered and transferred topurpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the and other indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. The Trustee shall be subrogated entitled to all rights conclusively rely on the delivery to it of any holders a written notice by a person representing himself to be a holder of Senior Indebtedness of the Company to receive any further payments (or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities a trustee or agent on behalf of such series shall have holder) to establish that such notice has been paid in full, and such payments or distributions received given by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the Companyevent that the Trustee determines, shallin good faith, that further evidence is required with respect to the right of any person as between the Company and its creditors other than the holders a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 1601, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Company, on Trustee as to the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account amount of Senior Indebtedness of held by such person, as to the Companyextent to which such person is entitled to participate in such payment or distribution, and not on account of as to other facts pertinent to the Securities rights of such series. The Trustee person under this Section 1601, and Holders will take if such action (including, without limitationevidence is not furnished, the delivery of this Indenture Trustee may defer any payment to an agent for the holders of Senior Indebtedness of the Company or consent such person pending judicial determination as to the filing right of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate such person to assure the effectiveness of the subordination effected by these provisionsreceive such payment.
Appears in 1 contract
Samples: Subordinated Indenture (Southern First Bancshares Inc)
Securities Subordinated to Senior Indebtedness. The Company Issuer covenants and agrees, and each Holder of a Securitythe Securities of any series, by his his, her or its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) ), interest, if any, on, and interest on and any Additional Amounts with Amounts, if any, payable in respect to of each and all of the Securities and (b) of any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, series is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness. Notwithstanding anything contained herein to the contrary, and such provisions are made payments from money or the proceeds of U.S. Government Obligations held in trust under Article 8 by the Trustee for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or and interest on the Securities of any series shall not be subordinated to the prior payment of any Senior Indebtedness of the Company when Issuer or subject to the same becomes restrictions set forth in this Article 13, and none of the Holders shall be obligated to pay over any such amount to the Issuer or any holder of Senior Indebtedness of the Issuer or any other creditor of the Issuer. In the event (a) of any distribution of assets of the Issuer upon any dissolution, winding up, liquidation or reorganization of the Issuer, whether in bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Issuer or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of Ventas, Inc. which complies with the requirements of Article 5, (b) that a default shall have occurred and be continuing with respect to the payment of principal of (and premium, if any), interest, if any, on, and Additional Amounts, if any, payable in respect of any Senior Indebtedness or (c) that the principal of the Securities of any series (or in the case of Original Issue Discount Securities, the portion of the principal amount thereof referred to in Section 6.02) shall have been declared due and payable pursuant to Section 6.02 and such declaration shall not have been rescinded and annulled as provided in Section 6.02, then:
(1) in a circumstance described in the foregoing clause (a) or (b), the holders of all Senior Indebtedness, and in the circumstance described in the foregoing clause (c), the holders of all Senior Indebtedness outstanding at the time the principal of such Securities of any series (or in the case of Original Issue Discount Securities, such portion of the principal amount) shall have been so declared due and payable, whether at maturity shall first be entitled to receive payment of the full amount due thereon in respect of principal of (and premium, if any), interest, if any, on, and Additional Amounts, if any, or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money’s worth, before the Holders of any of the Securities of any series are entitled to be made receive any payment on account of the principal of or interest on any of the Securities(and premium, or if any), interest, if any, on, and Additional Amounts, if any, in respect of any redemption, retirement, purchase or other acquisition the indebtedness evidenced by the Securities of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,series;
(2) any proceeding for payment by, or distribution of assets of, the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement Issuer of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, property or securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer as reorganized or readjusted or securities of the Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions this Article 13 with respect to the indebtedness evidenced by the Securitiessecurities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at holders of the time outstanding and to any securities issued in respect thereof under any Senior Indebtedness are not altered by such plan of reorganization or readjustment), to which would otherwise (but for these subordination provisions) be payable or deliverable in respect the Holders of any of the Securities of any series would be entitled except for the provisions of this Article 13 shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of any of the Company (including any interest thereon accruing after the commencement Securities of any such proceedingsseries under this Indenture; and
(3) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Issuer of any character kind or any securitycharacter, whether in cash, property or securities or other property (other than securities of the Company Issuer as reorganized or readjusted or securities of the Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these subordination provisions this Article 13 with respect to the indebtedness evidenced by the SecuritiesSecurities of any series, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at the time outstanding and to any securities issued in respect thereof under any holders of Senior Indebtedness are not altered by such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention Holders of any of the terms hereof Securities of any series before all Senior Indebtedness is paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of the Company at the time outstanding in accordance with the priorities then existing among such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness but the Securities shall in all respects rank pari passu with all other Senior Subordinated Indebtedness of the Issuer. The Securities shall rank senior to all existing and any one or more future Indebtedness of them may enforce such provisions. In the event Issuer that is neither Senior Indebtedness nor Senior Subordinated Indebtedness and only Indebtedness of the Company Issuer that is Senior Indebtedness shall rank senior to the Securities in accordance with the provisions set forth herein.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company Issuer and the Trustee by the holders of Senior Indebtedness or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived waived, or shall have has ceased to exist, or any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofIssuer (or cash in lieu of fractional shares thereof).
(1c) If any default (other than a default described in paragraph (b) of this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the Issuer and the Trustee of written notice thereof (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness specifying an election to prohibit such payment and other action by the Issuer in accordance with the following provisions of this paragraph (c), the Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) of this Section 13.1 during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Issuer may resume payments on the Securities following such Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver, conservator, liquidator or trustee of the Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Code), and is not dismissed within 60 days after such filing; or (ii) the Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of debt, dissolution, liquidation or other relief with respect to itself or its debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Code) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails generally to, or cannot, pay its creditors debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyIssuer takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), adjustment) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Issuer ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Issuer the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred to, to the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of such Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyIssuer or any Holder of Securities. Nothing contained herein shall impair, as between the Issuer and the Holders of Securities of each series, the obligation of the Issuer to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of to remove cash, securities or other property otherwise payable or deliverable to the Company Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company Issuer and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company Issuer in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all of the Securities is hereby expressly subordinate and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinatedjunior, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified Indebtedness.
(a) Upon any distribution of assets of the Company, upon any dissolution, winding up, liquidation or reorganization of the Company, whether in such Security bankruptcy, insolvency, reorganization or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance receivership proceedings or upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made an assignment for the benefit of creditors or any other marshaling of the assets and liabilities of the Company or otherwise, then the holders of such all Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the first be entitled to receive payment of the full amount due thereon in cash or other consideration satisfactory to the holders of Senior Indebtedness in respect of principal (and premium, if any) and interest, or provision shall be made for such amount in cash or other consideration satisfactory to the holders of Senior Indebtedness, before the Holders of any of the Securities are entitled to receive any payment or distribution of any character, whether in cash, securities or other property, on account of the principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or indebtedness evidenced by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In For purposes of this Article Twelve, the event of
(1) any insolvencywords, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in "cash, securities or other property, " shall not be made deemed to any Holder include shares of any stock of the Securities on account thereof. Any payment Company as reorganized or distributionreadjusted, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment readjustment, the payment of which is subordinate, subordinated at least to the extent provided in these subordination provisions this Article Twelve with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company which may at the time outstanding and to be outstanding; provided that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise and (but for these subordination provisionsii) be payable or deliverable in respect the rights of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company in accordance with with, or the priorities then existing among such holders until all Senior Indebtedness merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article Five shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 12.01(a) if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Five.
(including b) No payment shall be made by the Company with respect to the principal of, premium, if any, or interest on the Securities or to acquire any of the Securities, if (i) any default in payment of the principal of or premium, if any, or interest thereon accruing after the commencement on, rent under, or any other payment obligation under any Senior Indebtedness occurs and is continuing (a "Payment Default") beyond any applicable grace period with respect thereto, unless and until all such payments due in respect of any such proceedings) shall Senior Indebtedness have been paid in fullfull in cash or other consideration satisfactory to holders of Senior Indebtedness or such default shall have been cured or waived or shall have ceased to exist, (ii) any event of default, other than a Payment Default, with respect to any Designated Senior Indebtedness occurs and is continuing permitting the holders of such Designated Senior Indebtedness (or a trustee or other representative on behalf of the holders thereof) to declare such Designated Senior Indebtedness due and payable prior to the date on which it would otherwise have become due and payable, and the Trustee receives notice thereof from the Company or by any holders of such Designated Senior Indebtedness (or a trustee or other representative on behalf of the holders thereof) (the "Payment Blockage Notice"), for a period (the "Payment Blockage Period") ending on the earlier of the date on which such event of default shall have been cured or waived or shall have ceased to exist or 179 days after receipt of the Payment Blockage Notice, or (iii) any judicial proceeding shall be pending with respect to any such default in payment or event of default; provided, further, any number of additional Payment Blockage Periods may be commenced during an existing Payment Blockage Period; provided, however, that no such additional Payment Blockage Period shall extend beyond the initial Payment Blockage Period. Notwithstanding anything in the subordination provisions of this Indenture or the Securities to the contrary, (x) in no event will a Payment Blockage Period extend beyond 179 days from the date of the Payment Blockage Notice in respect thereof was given and (y) there shall be a period of at least 181 consecutive days in each 360-day period when no Payment Blockage Period is in effect. No nonpayment default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be the basis for a subsequent payment blockage notice.
(c) If the maturity of the Securities is accelerated, no payment may be made on the Securities until all amounts due or to become due on Senior Indebtedness have been paid in full in cash or other consideration satisfactory to holders of Senior Indebtedness or until such acceleration has been cured or waived.
(d) In the event that, notwithstanding the foregoingforegoing provisions of Sections 12.01(a), (b) and (c), any payment on account of principal of or distribution of any character interest on the Securities shall be made by or any security, whether in cash, securities or other property (other than securities on behalf of the Company and received by the Trustee, by any Holder or by any other corporation provided Paying Agent (or, if the Company is acting as its own Paying Agent, money for by a plan of reorganization or readjustment the any such payment of which are subordinateshall be segregated and held in trust), at least a time when such payment is not permitted by any of such provisions, then, unless and until all Senior Indebtedness (or Designated Senior Indebtedness, in the case of Section 12.01(b)) is paid in full in cash or other consideration satisfactory to the extent provided in these subordination provisions with respect holders thereof, or such payment is otherwise permitted to the indebtedness evidenced be made by the Securitiesprovisions of each of Sections 12.01(a), 12.01(b) and 12.01(c) (subject, in each case, to the payment provisions of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustmentSection 12.07), such payment on account of principal of or interest on the Securities shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received held in trust for the benefit of, and shall be immediately paid over or delivered and transferred to, the holders of Senior Indebtedness (or Designated Senior Indebtedness, in the case of Section 12.01(b)) or their representative or representatives or the trustee or trustees under any indenture under which any instruments evidencing any of the Senior Indebtedness (or Designated Senior Indebtedness, in the case of the Company at the time outstanding in accordance with the priorities then existing among such holders for application Section 12.01(b)) may have been issued, as their interests may appear. Regardless of anything to the payment of all Senior Indebtedness of the Company remaining unpaidcontrary herein, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or nothing shall prevent (A) any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account or the Trustee to Holders of Senior Indebtedness amounts in connection with a redemption of Securities if (i) notice of such redemption has been given pursuant to Section 3.01 prior to the Companyreceipt by the Trustee of a Payment Blockage Notice, and (ii) such notice of redemption is given not on account of earlier than 75 days before the Securities of such series. The Redemption Date, or (B) any payment by the Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing Holders of a financing statement amounts deposited with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate it pursuant to assure the effectiveness of the subordination effected by these provisionsSection 8.01.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company and each Holder With respect to the Securities to be issued under the Indenture on or after the date of this Third Supplemental Subordinated Indenture, unless any such Security is a Securityfurther issuance of Securities with the same terms as Securities originally issued prior to the date of this Third Supplemental Subordinated Indenture, by his acceptance thereof, agree that (a) the payment Section 13.01 of the principal ofIndenture, premium which reads as follows, shall be deleted in its entirety: “The Securities (if anyincluding any Coupons relating thereto) constitute the direct, unconditional and interest on and any Additional Amounts with respect to each and all unsecured obligations of the Securities and (b) any other payment in respect Issuer ranking without preference or priority among themselves. The obligations of the Issuer under the terms of the Securities, including whether on account of the acquisition principal, interest or redemption of Securities by the Companyotherwise, is subordinated, are subordinated to the extent Senior Indebtedness of the Issuer and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, will rank junior to the prior payment in full claims of the holders of all Senior Indebtedness specified of the Issuer in such Security the event of bankruptcy or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons whoinsolvency (Insolvenzverfahren), in reliance upon such provisionssuspension of payments, become holders ofdissolution, liquidation (Liquidation) or continue to holdwinding up of the Issuer, any of such Senior Indebtedness, and such provisions are made for but will rank at least pari passu with the benefit claims of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness all other subordinated indebtedness of the Company when the same becomes due and payableIssuer, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default except that it shall rank in priority to the Company by claims of the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account subordinated indebtedness of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of Issuer that by its express terms is stated to rank junior to the Securities. In the event of
(1) any of bankruptcy or insolvency, bankruptcysuspension of payments, receivershipdissolution, liquidation, reorganization, readjustment, composition liquidation or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the CompanyIssuer, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by no amounts will be payable under the Company for Securities until the benefit claims of creditors, or
(4) any other marshalling all creditors of the assets of the Company, all Senior Indebtedness of have been satisfied in full.” and shall be replaced with the Company following: “The Securities (including any Coupons relating thereto) constitute the direct and unconditional obligations of the Issuer and are subordinated to the Priority Claims. The obligations of the Issuer under the Securities shall rank without preference or priority among themselves. The obligations of the Issuer under the terms of the Securities, whether on account of principal, interest thereon accruing after or otherwise, are subordinated to the commencement Priority Claims of the Issuer and will rank junior to the claims of the holders of all Priority Claims of the Issuer in the event of any Resolution Measure imposed on the Issuer or in the event of bankruptcy or insolvency (Insolvenzverfahren), suspension of payments, dissolution, liquidation (Liquidation) or winding up of the Issuer, but will rank at least pari passu with the claims of the holders of all other subordinated indebtedness (it being understood that no Priority Claims constitute subordinated obligations) of the Issuer, except as otherwise provided by applicable law or the terms of any such proceedings) other indebtedness, and in particular, they shall first be paid rank in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least priority to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment claims of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness any subordinated indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for Issuer that by a plan of reorganization or readjustment the payment of which are subordinate, at least its express terms is stated to rank junior to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of any Resolution Measure imposed on the failure Issuer or in the event of bankruptcy or insolvency, suspension of payments, dissolution, liquidation or winding up of the Trustee Issuer, no amounts will be payable under the Securities until the claims of all creditors of Priority Claims have been satisfied in full. As used in this Section 5.01, Resolution Measure shall have the meaning set forth in the Third Supplemental Subordinated Indenture dated , 2017. For the avoidance of doubt, Senior Indebtedness shall constitute Priority Claims. The Securities are subordinated to, and shall rank junior to, Senior Indebtedness. In the event of any Resolution Measure imposed on the Issuer or any Holder to endorse in the event of bankruptcy or assign any such paymentinsolvency, distribution suspension of payments, dissolution, liquidation or securitywinding up of the Issuer, each holder no amounts will be payable under the Securities until the claims of all creditors of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid satisfied in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.”
Appears in 1 contract
Samples: Third Supplemental Subordinated Indenture (Deutsche Bank Aktiengesellschaft)
Securities Subordinated to Senior Indebtedness. The Except as otherwise provided in a supplemental indenture or pursuant to Section 301, the Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all of the Securities is hereby expressly subordinate and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinatedjunior, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified Indebtedness.
(1) In the event of any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company, whether in such Security bankruptcy, insolvency, reorganization or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance receivership proceedings or upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made an assignment for the benefit of creditors or any other marshaling of the assets and liabilities of the Company or otherwise, then the holders of such all Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the first be entitled to receive payment of the full amount due thereon in cash or other consideration satisfactory to the holders of Senior Indebtedness in respect of principal (and premium, if any) and interest, or provision shall be made for such amount in money or money's worth, before the Holders of any of the Securities are entitled to receive any payment or distribution of any character, whether in cash, securities or other property, on account of the principal of (or premium, if any) or interest on any Senior Indebtedness the indebtedness evidenced by the Securities. For purposes of this Article Fifteen, the words, "cash, securities or other property" shall not be deemed to include shares of stock of the Company when as reorganized or readjusted, or securities of the same becomes due and payableCompany or any other corporation provided for by a plan of reorganization or readjustment, whether the payment of which is subordinated at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default least to the Company extent provided in this Article Fifteen with respect to the Securities to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Indebtedness (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another person or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another person upon the terms and conditions provided for in Article Eight shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 1501(1) if such other person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Eight.
(2) In the event of any default in payment of the principal of or premium, if any, or interest on, rent under, or any trustee thereforother payment obligation under any Senior Indebtedness (a "Payment Default") beyond any applicable grace period with respect thereto, then, unless and until all such payments due in respect of such Senior Indebtedness have been paid in full in cash or other consideration satisfactory to holders of Senior Indebtedness or such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed by the Company with respect to be made on account of the principal of of, premium, if any, or interest on the Securities or to acquire any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,.
(3) In the event (i) any assignment event of default, other than a Payment Default, with respect to any Designated Senior Indebtedness shall have occurred and be continuing permitting the holders of such Designated Senior Indebtedness (or a trustee or other representative on behalf of the holders thereof) to declare such Designated Senior Indebtedness due and payable prior to the date on which it would otherwise have become due and payable, upon written notice thereof to the Company and the Trustee by any holders of such Designated Senior Indebtedness (or a trustee or other representative on behalf of the holders thereof) (the "Default Notice"), unless and until such event of default shall have been cured or waived or shall have ceased to exist and such acceleration shall have been rescinded or annulled, or (ii) any judicial proceeding shall be pending with respect to any such default in payment or event of default, then no payment shall be made by the Company, directly or indirectly, with respect to principal of, premium, if any, or interest on the Securities; provided, however, that clause (i) of this paragraph shall not prevent the making of any such payment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced Securities for more than 179 days after a Default Notice shall have been received by the Securities, to Trustee unless the payment of all Designated Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities which such event of any series shall default exists has been declared due and payable in its entirety in which case no such payment may be paid made until such acceleration has been rescinded or delivered directly to the holders of annulled or such Designated Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have has been paid in full. Notwithstanding the foregoing, no event of default which existed or was continuing on the date of any Default Notice shall be made the basis for the giving of a second Default Notice; provided, further, however, that no subsequent Default Notice shall be effective for purposes of this Section 1501(3) unless and until at least 365 days shall have elapsed since the initial effectiveness of the immediately prior Default Notice.
(4) If the maturity of the Securities is accelerated, no payment may be made on the Securities until all amounts due or to become due on Senior Indebtedness has been paid in full in cash or other consideration satisfactory to holders of Senior Indebtedness or until such acceleration has been cured or waived.
(5) In the event that, notwithstanding the foregoingforegoing provisions of Sections 1501(1), (2), (3) and (4), any payment on account of principal of or distribution of any character interest on the Securities shall be made by or any security, whether in cash, securities or other property (other than securities on behalf of the Company and received by the Trustee, by any Holder or by any other corporation provided Paying Agent (or, if the Company is acting as its own Paying Agent, money for by a plan of reorganization or readjustment the any such payment of which are subordinateshall be segregated and held in trust), at least a time when such payment is not permitted by any of such provisions, then, unless and until all Senior Indebtedness (or Designated Senior Indebtedness, in the case of Section 1051(3)) is paid in full in cash or other consideration satisfactory to the extent provided in these subordination provisions with respect holders thereof, or such payment is otherwise permitted to the indebtedness evidenced be made by the Securitiesprovisions of each of Sections 1501(1), 1501(2), 1501(3) and 1501(4) (subject, in each case, to the payment provisions of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustmentSection 1507), such payment on account of principal of or interest on the Securities shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received held in trust for the benefit of, and shall be immediately paid over or delivered and transferred to, the holders of Senior Indebtedness (or Designated Senior Indebtedness, in the case of Section 1501(3)) or their representative or representatives or the trustee or trustees under any indenture under which any instruments evidencing any of the Senior Indebtedness (or Designated Senior Indebtedness, in the case of the Company at the time outstanding in accordance with the priorities then existing among such holders for application Section 1501(3)) may have been issued, as their interests may appear. Regardless of anything to the payment of all Senior Indebtedness of the Company remaining unpaidcontrary herein, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or nothing shall prevent (a) any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account or the Trustee to Holders of Senior Indebtedness amounts in connection with a redemption of Securities if (i) notice of such redemption has been given pursuant to Section 1102 prior to the Companyreceipt by the Trustee of written notice as aforesaid, and (ii) such notice of redemption is given not on account of earlier than 75 days before the Securities of such series. The Redemption Date, or (b) any payment by the Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing Holders of a financing statement amounts deposited with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate it pursuant to assure the effectiveness of the subordination effected by these provisionsSections 1501 and 1502.
Appears in 1 contract
Samples: Indenture (Lsi Logic Corp)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees that anything in this Indenture or the Securities of any Series to the contrary notwithstanding, the indebtedness evidenced by the Securities of each Series is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein, and each Holder of a SecuritySecurities of each Series, by his such Holder's acceptance thereof, agree that (a) likewise covenants and agrees to the payment of the principal of, premium (if any) subordination herein provided and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities shall be bound by the Company, provisions hereof. If any default occurs and is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payabledue, whether at maturity or at a date fixed for prepayment or maturity, upon any redemption, by declaration or otherwise, thenof any principal of, interest on, unpaid drawings for letters of credit issued in respect of, or regularly accruing fees with respect to, any Senior Indebtedness (a "Payment Default"), no payment of any kind or character shall be made by or on behalf of the Company or any other person on its or their behalf with respect to any principal of, interest on or other amounts owing in respect of the Securities or to acquire any of the Securities for cash, property or otherwise. Upon the happening of any default or event of default (other than a Payment Default) (including any event which with the giving of notice or the lapse of time or both would become an event of default and including any default or event of default which would result upon any payment with respect to the Securities) with respect to any Senior Indebtedness, as such default or event of default is defined therein or in the instrument or agreement or other document under which it is outstanding, then upon written notice of such default thereof given to the Company and the Trustee by the a holder or holders of any Senior Indebtedness or their Representative ("Payment Notice"), no payment shall be made by or on behalf of the Company with respect to the principal of, premium, if any, or interest on the Securities, during the period (the "Payment Blockage Period") commencing on the date of such receipt of such Payment Notice and ending on the earlier of (x) the date, if any, on which such default is cured or waived or ceases to exist or the Senior Indebtedness to which such default relates is discharged and (y) the 120th day after the date of receipt of such Payment Notice. The Company may resume payments on the Securities after such Payment Blockage Period. Not more than one Payment Notice may be given in any consecutive 360-day period with respect to any Senior Indebtedness, irrespective of the number of defaults with respect to Senior Indebtedness during such period, and the giving of a Payment Notice will not prevent the payment of an installment of principal of or interest on the Securities for more 120 days, except that the commencement of a Payment Blockage Period by any holders of or the trustee thereforfor Senior Indebtedness other than Indebtedness under the Company's revolving loan and letter of credit facility with The Chase Manhattan Bank, N.A. and a group of other lenders (the "Bank Credit Facility") (the "Initial Payment Blockage Period") will not prevent the commencement of a subsequent Payment Blockage Period (the "Subsequent Payment Blockage Period") by the Agent under the Bank Credit Facility, PROVIDED, HOWEVER, that in no event may the Subsequent Payment Blockage Period end later than the 179th day after the date of receipt of the Payment Notice with respect to the Initial Payment Blockage Period. Notwithstanding the foregoing, (i) no event of default which existed or was continuing on the date of any Payment Notice shall be made the basis for the giving of a subsequent Payment Notice unless and until all such events of default shall have been cured or waived for a period of at least 90 consecutive days after such date, and (ii) if the Company or the Trustee receives any Payment Notice, a similar notice relating to or arising out of the same default or facts giving rise to such default (whether or not such default is on the same issue of Senior Indebtedness), unless cured or waived for such period of at least 90 consecutive days, shall have ceased to existnot be effective for purposes of this paragraph (c). Upon any payment or distribution of assets of the Company of any kind or character, no direct or indirect payment (whether in cash, property, property or securities, by set-off to creditors upon any total or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securitiespartial liquidation, or in respect of any redemptiondissolution, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidationwinding up, reorganization, readjustmentassignment for the benefit of creditors or marshaling of assets of the Company or in a bankruptcy, composition reorganization, insolvency, receivership or other similar proceeding relating to the Company, its creditors Company or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary, whether all principal of, interest on and all other amounts due or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, to become due upon all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full in cash, or such payment duly provided for to the satisfaction of the holders of Senior Indebtedness, before any payment or distribution of any kind or character is made on account of any principal of, interest on or other amounts owing in respect of the Securities, or for the acquisition of any of the Securities for cash, property or otherwise. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Company ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, securities property or other propertyotherwise, shall be made to any Holder on account of any of the Securities on account thereof. Any payment Capital Stock or distribution, whether in cash, securities or other property (other than securities any obligations of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least ranking junior to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding Securities and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in fullother obligations. In the event thatIf, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment)property, shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness Nothing contained herein shall impair, as between the Company and the Holders of Securities of each Series, the obligation of the Company to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the Holders. Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property cash equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series Series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series Series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such seriesSeries. The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.01 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company in respect of any security the creation of which is not prohibited by the provisions of this Indenture. The securing of any obligations of the Company, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company Company, for itself and its successors, and each Holder of a SecurityHolder, by his or her acceptance thereofof Securities, agree agrees that (a) the payment of the principal of, premium (if any) Principal of and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedthis Article 11, to the prior right of payment in full to all present and future Senior Indebtedness, and that these subordination provisions are for the benefit of all the holders of Senior Indebtedness. The provisions of this Article 11 are for the benefit of the holders of the Senior Indebtedness specified from time to time (and their successors and assigns) and shall be enforceable directly by them and their respective representatives directly against the Company, the Trustee and the Holders (and their successors and assigns). The provisions of this Article 11 shall be a continuing agreement and shall be irrevocable and shall remain in such Security full force and effect until payment in the full of the Senior Indebtedness in cash or in such supplemental indenture. Such subordination provisions cash equivalents, and shall constitute a continuing and irrevocable offer to all Persons who, in reliance upon such provisions, who become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of Indebtedness (whether such Senior Indebtedness and any one was created or more of them may enforce such provisions. In acquired before or after the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any issuance of the Securities), or in respect each of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding which holders shall be deemed for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all purposes hereof to have acquired Senior Indebtedness in reliance upon the provisions of the Company (including any interest thereon accruing after this Article 11. The provision of this Article 11 shall survive the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities reorganization or other property, shall be made proceedings with respect to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan Person and the discharge of any claim in connection with such reorganization or readjustment the payment of which is subordinateother proceedings, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery discharge of this Indenture to an agent for the any Senior Indebtedness. The holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness and their respective representatives are hereby authorized to demand specific performance of the provisions of this Article 11 at any time when the Company at the time outstanding, be necessary or appropriate any Holder shall have failed to assure the effectiveness comply with any provision of the subordination effected by these provisions.this
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. (a) The Company covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereofof this Indenture, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedthis Indenture, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that Indebtedness.
(b) Subject to Section 15.4 below, if (i) the Company shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company and the Trustee by the holders of Senior Indebtedness or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived waived, or shall have has ceased to exist, or any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofCompany (or cash in lieu of fractional shares of this Indenture).
(1c) If any default (other than a default described in paragraph (b) of this Section 15.1) shall occur under the Senior Indebtedness, pursuant to which the maturity of this Indenture may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the Company and the Trustee of written notice of this Indenture (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness specifying an election to prohibit such payment and other action by the Company in accordance with the following provisions of this paragraph (c), the Company may not make any payment or take any other action that would be prohibited by paragraph (b) of this Section 15.1 during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Company may resume payments on the Securities following such Payment Blockage Period. Any number of Payment Notices may be given; provided, however, that (i) not more than one Payment Notice shall be given within a period of any 360 consecutive days, and (ii) no default that existed upon the date of such Payment Notice or the commencement of such Payment Blockage Period (whether or not such event of default is on the same issue of Senior Indebtedness) shall be made the basis for the commencement of any other Payment Blockage Period.
(d) If (i) (A) without the consent of the Company, a receiver, conservator, liquidator or trustee of the Company or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Company is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Company under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Code), and is not dismissed within 60 days after such filing; or (ii) the Company (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of debt, dissolution, liquidation or other relief with respect to itself or its debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Code) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails generally to, or cannot, pay its creditors debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyCompany takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereofof this Indenture. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof of this Indenture under any such plan of reorganization or readjustment), adjustment) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Company ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof of this Indenture under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof of this Indenture, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred to, to the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of such Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyCompany or any Holder of Securities. Senior Indebtedness Nothing contained in this Indenture shall impair, as between the Company and the Holders of Securities of each series, the obligation of the Company to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or under this Indenture upon a default or Event of Default under this Indenture, all subject to the rights of the holders of the Senior Indebtedness to remove cash, securities or other property otherwise payable or deliverable to the Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof of this Indenture shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 15.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company or consent to in respect of any security interest the filing creation of a financing statement with respect thereto) as may, in the opinion of counsel designated which is not prohibited by the holders provisions of a majority in principal amount this Indenture.
(i) The securing of any obligations of the Senior Indebtedness of Company, otherwise ranking on a parity with the Company at Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal of, premium (if any) any and interest on and any Additional Amounts with all amounts payable in respect to of each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made whether outstanding on the date of this Indenture or thereafter incurred, assumed or guaranteed. In the event (a) of any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company whether in a bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets and liabilities of the CompanyCompany or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of the Company which complies with the requirements of Article Nine, or (b) that a default shall have occurred and be continuing with respect to the payment of any amount payable in respect of any Senior Indebtedness, or (c) that the principal of the Securities of any Series shall have been declared due and payable pursuant to Section 5.1 and such declaration shall not have been rescinded and annulled as provided in Section 5.1, then:
(1) in a circumstance described in the foregoing clause (a) or (b) the holders of all Senior Indebtedness, and in the circumstance described in the foregoing clause (c) the holders of all Senior Indebtedness outstanding at the time the principal of such Securities (or in the case of Original Issue Discount Securities, such portion of the Company (including any interest thereon accruing after the commencement of any such proceedingsprincipal amount) shall have been so declared due and payable, shall first be paid entitled to receive payment of the full amount due thereon, or provision shall be made for such payment in full money or money's worth, before the Holders of any of the Securities are entitled to receive any payment in respect of the indebtedness evidenced by the Securities;
(2) any payment by, or distributiondistribution of assets of, the Company of any kind or character, whether in cash, property or securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities 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 subordinate, at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at holders of the time outstanding and to any securities issued in respect thereof under any Senior Indebtedness are not altered by such plan of reorganization or readjustment), to which would otherwise (but for these subordination provisions) be payable or deliverable in respect the Holders of any of the Securities would be entitled except for the provisions of any series this Article shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Company indebtedness evidenced by the Securities under this Indenture; and
(including any interest thereon accruing after the commencement of any such proceedings3) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Company of any character kind or any securitycharacter, whether in cash, property or securities or other property (other than securities 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 are is subordinate, at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at the time outstanding and to any securities issued in respect thereof under any holders of Senior Indebtedness are not altered by such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention Holders of any of the terms hereof Securities before all Senior Indebtedness is paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of the Company at the time outstanding in accordance with the priorities then existing among such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company ---------------------------------------------- covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal of, premium (if any) any and interest on and any Additional Amounts with all amounts payable in respect to of each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made whether outstanding on the date of this Indenture or thereafter incurred, assumed or guaranteed. In the event (a) of any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company whether in a bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities and liabilities of the Company or any other corporation provided for by otherwise, except a plan distribution in connection with a merger or consolidation or a conveyance or transfer of reorganization all or readjustment substantially all of the payment properties of the Company which is subordinatecomplies with the requirements of Article Eight, at least to the extent provided in these subordination provisions or (b) that a default shall have occurred and be ------------- continuing with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued amount payable in respect thereof under of any such plan of reorganization Senior Indebtedness, or readjustment), which would otherwise (but for these subordination provisionsc) be payable or deliverable in respect that the principal of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) Series shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least declared due and payable pursuant to the extent Section 502 and such ----------- declaration shall not have been rescinded and annulled as provided in these subordination provisions with respect to the indebtedness evidenced by the SecuritiesSection ------- 502, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.then: ---
Appears in 1 contract
Samples: Indenture (McLeodusa Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with payable in respect to of each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness. In the event (a) of any distribution of assets of the Company upon any dissolution, and such provisions are made winding up, liquidation or reorganization of the Company whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshaling of the holders assets and liabilities of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of the Company which complies with the requirements of Article Eight, or (b) that a default shall default in have occurred and be continuing with respect to the payment of any principal of (or premium, if any) or interest on or any Additional Amounts payable in respect of any Senior Indebtedness Indebtedness, or (c) that the principal of the Company when Securities of any series (or in the same becomes case of Original Issue Discount Securities, the portion of the principal amount thereof referred to in Section 502) shall have been declared due and payable pursuant to Section 502 and such declaration shall not have been rescinded and annulled as provided in Section 502, then:
(1) in a circumstance described in the foregoing clause (a) or (b) the holders of all Senior Indebtedness, and in the circumstance described in the foregoing clause (c) the holders of all Senior Indebtedness (other than Other Obligations) outstanding at the time the principal of such Securities (or in the case of Original Issue Discount Securities, such portion of the principal amount) shall have been so declared due and payable, whether at maturity shall first be entitled to receive payment of the full amount due thereon in respect of principal, premium (if any), Interest and Additional Amounts, or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money's worth, before the Holders of any of the Securities are entitled to be made receive any payment on account of the principal of (or premium, if any) or interest on or any of the Securities, or Additional Amounts in respect of any redemption, retirement, purchase or other acquisition of any of the indebtedness evidenced by the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,;
(2) any proceeding for the liquidationpayment by, dissolution or other winding up distribution of the Companyassets of, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, property or securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities 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 subordinate, at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securitiessecurities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at holders of the time outstanding and to any securities issued in respect thereof under any Senior Indebtedness are not altered by such plan of reorganization or readjustment), to which would otherwise (but for these subordination provisions) be payable or deliverable in respect the Holders of any of the Securities would be entitled except for the provisions of any series this Article shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Company indebtedness evidenced by the Securities under this Indenture; and
(including any interest thereon accruing after the commencement of any such proceedings3) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Company of any character kind or any securitycharacter, whether in cash, property or securities or other property (other than securities 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 are is subordinate, at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at the time outstanding and to any securities issued in respect thereof under any holders of Senior Indebtedness are not altered by such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention Holders of any of the terms hereof Securities before all Senior Indebtedness is paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of the Company at the time outstanding in accordance with the priorities then existing among such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Samples: Indenture (Worldcom Inc /Ga/)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree that (a) the payment of the principal oflikewise covenants and agrees, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinatedthat, to the extent and in the manner provided hereinafter set forth in such Security this Article 9, the indebtedness represented by the Securities and all Payments or Distributions in Respect of the supplemental indenture pursuant to which such Security is issued, Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness. If at any time following the payment of any amount to a holder of Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer with respect to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, such payment is rescinded or must otherwise be returned by such holder upon the insolvency, bankruptcy, reorganization, dissolution or liquidation of the Company or any other Person or otherwise, and is so rescinded or returned to the party or parties making such payment, such Senior Indebtedness shall be reinstated to the extent of such payment and the provisions of this Article 9 shall be applicable as if such payment were never made. The provisions of this Article 9 are made for the benefit of the holders of such Senior Indebtedness Indebtedness, and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any each Holder of the Securities, or in respect of any redemption, retirement, by his purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company hereby agrees for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the that his Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal are subject to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsArticle 9.
Appears in 1 contract
Samples: Supplemental Indenture (Integrated Health Services Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, Securities by his acceptance thereof likewise covenants and agrees, that all Securities are subject to the provisions of this Article 5; and each Person holding any Security, whether upon original issue or upon transfer or assignment thereof, agree accepts and agrees to be bound by such provisions and acknowledges that (a) such provisions are for the benefit of, and shall be enforceable directly by, the holders of Senior Indebtedness. Each Holder of Securities authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate, in the sole discretion of the Trustee, to acknowledge or effectuate the subordination between the Holders of Securities and the holders of Senior Indebtedness as provided in this Article 5 and appoints the Trustee as such Holder's attorney-in-fact for any and all such purposes. The payment of the principal of, premium (premium, if any) , and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect due pursuant to this Indenture or any Securities issued hereunder (including, without limitation, the payment or deposit of the SecuritiesRedemption Price, including on account of the acquisition Purchase Price or redemption of Securities by the Company, is subordinatedRepurchase Price pursuant to Article 3 and any deposit pursuant to Section 6.3) shall, to the extent and in the manner provided hereinafter set forth, be subordinated and subject in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company outstanding at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery date of this Indenture to an agent for the holders or thereafter created, incurred, assumed or guaranteed. The Securities are not superior in right of Senior Indebtedness of the Company or consent payment to the filing of a financing statement Existing Notes and shall rank PARI PASSU with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsExisting Notes.
Appears in 1 contract
Samples: Indenture (Waste Connections Inc/De)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all of the Securities is hereby expressly subordinate and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinatedjunior, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified Indebtedness.
(a) Upon any distribution of assets of the Company, upon any dissolution, winding-up, liquidation or reorganization of the Company, whether in such Security bankruptcy, insolvency, reorganization or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance receivership proceedings or upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made an assignment for the benefit of creditors or any other marshaling of the assets and liabilities of the Company or otherwise, then the holders of such all Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the first be entitled to receive payment of the full amount due thereon in cash or other consideration satisfactory to the holders of Senior Indebtedness in respect of principal (and premium, if any) and interest, or provision shall be made for such amount in cash or other consideration satisfactory to the holders of Senior Indebtedness, before the Holders of any of the Securities are entitled to receive any payment or distribution of any character, whether in cash, securities or other property, on account of the principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or indebtedness evidenced by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In For purposes of this Article Twelve, the event of
(1) any insolvencywords, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in "cash, securities or other property, " shall not be made deemed to any Holder include shares of any stock of the Securities on account thereof. Any payment Company as reorganized or distributionreadjusted, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment readjustment, the payment of which is subordinate, subordinated at least to the extent provided in these subordination provisions this Article Twelve with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company which may at the time outstanding and to be outstanding; provided that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise and (but for these subordination provisionsii) be payable or deliverable in respect the rights of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company in accordance with with, or the priorities then existing among such holders until all Senior Indebtedness merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article Five shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 12.01(a) if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Five.
(including b) No payment shall be made by the Company with respect to the principal of, premium, if any, or interest on the Securities or to acquire any of the Securities, if (i) any default in payment of the principal of or premium, if any, or interest thereon accruing after the commencement on, or any other obligation under any Designated Senior Indebtedness occurs and is continuing (a "Payment Default") beyond any applicable grace period with respect thereto, unless and until all such payments due in respect of any such proceedings) shall Designated Senior Indebtedness have been paid in fullfull in cash or other consideration satisfactory to holders of Senior Indebtedness or such default shall have been cured or waived or shall have ceased to exist, (ii) any event of default, other than a Payment Default, with respect to any Designated Senior Indebtedness occurs and is continuing permitting the holders of such Designated Senior Indebtedness (or a trustee or other representative on behalf of the holders thereof) to declare such Designated Senior Indebtedness due and payable prior to the date on which it would otherwise have become due and payable, and the Trustee receives notice thereof from the Company or by any holders of such Designated Senior Indebtedness (or a trustee or other representative on behalf of the holders thereof) (the "Payment Blockage Notice"), for a period (the "Payment Blockage Period") ending on the earlier of the date on which such event of default shall have been cured or waived or shall have ceased to exist or 179 days after receipt of the Payment Blockage Notice, or (iii) any judicial proceeding shall be pending with respect to any such default in payment or event of default; provided, further, any number of additional Payment Blockage Periods may be commenced during an existing Payment Blockage Period; provided, however, that no such additional Payment Blockage Period shall extend beyond the initial Payment Blockage Period. Notwithstanding anything in the subordination provisions of this Indenture or the Securities to the contrary, (x) in no event will a Payment Blockage Period extend beyond 179 days from the date of the Payment Blockage Notice in respect thereof was given and (y) there shall be no new Payment Blockage Period unless and until 360 days have elapsed since the initial effectiveness of the prior Payment Blockage Period. No nonpayment default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be the basis for a subsequent payment blockage notice, unless the default has been cured or waived for a period of not less than 90 days.
(c) If the maturity of the Securities is accelerated, no payment may be made on the Securities until all amounts due or to become due on Senior Indebtedness have been paid in full in cash or other consideration satisfactory to holders of Senior Indebtedness or until such acceleration has been cured or waived.
(d) In the event that, notwithstanding the foregoingforegoing provisions of Sections 12.01(a), (b) and (c), any payment on account of principal of or distribution of any character interest on the Securities shall be made by or any security, whether in cash, securities or other property (other than securities on behalf of the Company and received by the Trustee, by any Holder or by any other corporation provided Paying Agent (or, if the Company is acting as its own Paying Agent, money for by a plan of reorganization or readjustment the any such payment of which are subordinateshall be segregated and held in trust), at least a time when such payment is not permitted by any of such provisions, then, unless and until all Senior Indebtedness (or Designated Senior Indebtedness, in the case of Section 12.01(b)) is paid in full in cash or other consideration satisfactory to the extent provided in these subordination provisions with respect holders thereof, or such payment is otherwise permitted to the indebtedness evidenced be made by the Securitiesprovisions of each of Sections 12.01(a), 12.01(b) and 12.01(c) (subject, in each case, to the payment provisions of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustmentSection 12.07), such payment on account of principal of or interest on the Securities shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received held in trust for the benefit of, and shall be immediately paid over or delivered and transferred to, the holders of Senior Indebtedness (or Designated Senior Indebtedness, in the case of Section 12.01(b)) or their representative or representatives or the trustee or trustees under any indenture under which any instruments evidencing any of the Senior Indebtedness (or Designated Senior Indebtedness, in the case of the Company at the time outstanding in accordance with the priorities then existing among such holders for application Section 12.01(b)) may have been issued, as their interests may appear. Regardless of anything to the payment of all Senior Indebtedness of the Company remaining unpaidcontrary herein, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or nothing shall prevent (A) any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account or the Trustee to Holders of Senior Indebtedness amounts in connection with a redemption of Securities if (i) notice of such redemption has been given pursuant to Section 3.01 prior to the Companyreceipt by the Trustee of a Payment Blockage Notice, and (ii) such notice of redemption is given not on account of earlier than 75 days before the Securities of such series. The Redemption Date, or (B) any payment by the Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing Holders of a financing statement amounts deposited with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate it pursuant to assure the effectiveness of the subordination effected by these provisionsSection 8.01.
Appears in 1 contract
Samples: Indenture (Venator Group Inc)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySubordinated Securities, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Subordinated Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Subordinated Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in the Indenture or in the Subordinated Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Subordinated Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(a) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on, or other amounts in respect of, all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer before the Holders of the Subordinated Securities are entitled to all Persons whoreceive any payment on account of principal, in reliance upon such provisionspremium, become holders ofif any, or continue interest upon the Subordinated Securities, and to holdthat end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Subordinated Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such proceedings in respect of the Subordinated Securities after giving effect to any concurrent payment or distribution in respect of such Senior Indebtedness, except for any payment or distribution of (i) securities which are subordinate and junior in right of payment to the payment of all Senior Indebtedness then outstanding and (ii) funds from a defeasance trust created pursuant to the Indenture (“Exempted Distributions”). If after we have made such payments with respect to Senior Indebtedness, (i) there are amounts available for payment on the Subordinated Securities (“Excess Proceeds”) and (ii) at such time, any creditors in respect of Other Company Obligations have not received their full payments, then the Company shall first use such Excess Proceeds to pay in full all Other Company Obligations before making any payment of principal, premium, if any, or interest on the Subordinated Securities of any series
(b) In the event that the Subordinated Securities of any series are declared or otherwise become due and payable before their expressed maturity because of the occurrence of certain Events of Default hereunder (under circumstances when the provisions of the foregoing clause (a) or the following clause (c) shall not be applicable), then the holders of Senior Indebtedness outstanding at the time such Subordinated Securities so become due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 5.01, be entitled to receive payment in full of all principal of, and premium and interest on or other amounts in respect of, all such Senior Indebtedness before the Holders of such Subordinated Securities are made entitled to receive any payment on account of principal of, premium, if any, or interest on, such Subordinated Securities; provided, however, nothing herein shall prevent the Holders of Subordinated Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(c) In the benefit of event that any default shall occur and be continuing, in each case, with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one or more to accelerate the maturity thereof, if either
(i) written notice of them may enforce such provisions. In the event that default shall have been received by the Company and the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal, premium, if any, or interest and within 90 days in the case of any other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 5.01(c) in any twelve month period, or
(ii) judicial proceedings shall be pending in respect of such default, then the Holders of the Subordinated Securities and the Trustee for the benefit of the Holders shall not be entitled to receive any payment on account of principal of (thereof, or premium, if any) , or interest on thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on, or other amounts in respect of, such Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity shall have been made or at a date fixed provided for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist. The Trustee, no direct forthwith upon receipt of any notice received by it pursuant to this Section 5.01(c), shall, as soon as practicable, send a notice thereof to each Holder of Subordinated Securities at the time outstanding as the names and addresses of such Holders appear on the Security register. In case despite the foregoing provisions, any payment or indirect distribution other than Exempted Distributions shall, in any such event, be paid or delivered to any Holder of the Subordinated Securities or to the Trustee for the benefit of the Holders before all Senior Indebtedness shall have been paid in full, such payment (in cash, property, securities, by set-off or otherwise) distribution shall be made held in trust for and so paid and delivered to the holders of Senior Indebtedness (or agreed their duly authorized representatives) until all Senior Indebtedness shall have been paid in full. The Company shall give written notice to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition arrangement or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan voluntary liquidation, dissolution or winding up proceeding within the meaning of reorganization this Section 5.01. Upon any payment or readjustment the payment distribution of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness assets of the Company at referred to in this Article 5, the time outstanding and Trustee, subject to any securities issued in respect thereof under any such plan the provisions of reorganization or readjustment), which would otherwise (but for these subordination provisionsSection 315(a) be payable or deliverable in respect through 315(b) of the Trust Indenture Act, and the Holders of the Subordinated Securities of any series shall be paid entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered directly to the Trustee or to the Holders of the Subordinated Securities, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company in accordance with Company, the priorities then existing among amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 5. The Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a person representing (as evidenced by such holders until all holder to the satisfaction of the Trustee) itself to be a holder of Senior Indebtedness or Other Company Obligations (or a trustee or agent on behalf of such holder similarly as evidenced to the satisfaction of the Trustee) to establish that such notice has been given by a holder of Senior Indebtedness or Other Company Obligations (including any interest thereon accruing after the commencement or a trustee or agent on behalf of any such proceedings) shall have been paid holder). In the event that the Trustee determines, in fullgood faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness or Other Company Obligations to participate in any payment or distribution pursuant to this Section 5.01, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness or Other Company Obligations 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 5.01, and if such evidence is not furnished, the Trustee may defer any payment or distribution to such person pending judicial determination as to the right of such person to receive such payment or distribution. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any character kind or any securitycharacter, whether in cash, securities property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other property (other than securities indebtedness of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, being subordinate to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment)Subordinated Securities, shall be received by the Trustee or any Holder in contravention of any Holders of the terms hereof such payment or distribution or security shall be received in trust for the benefit ofSubordinated Securities which, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment terms of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall this Article 5 should be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed payable to the holders of Senior Indebtedness or Other Company Obligations and if such fact shall, at or prior to the time of such payment or distribution, have been actually known by the Trustee or, as the case may be such Holder, then upon such actual knowledge, such payment or distribution shall be paid over by the Trustee or such Holders, as the case may be, to the holders of such Senior Indebtedness or Other Company Obligations (or the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment of assets of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions).
Appears in 1 contract
Samples: First Supplemental Indenture (First Mid Bancshares, Inc.)
Securities Subordinated to Senior Indebtedness. The Company and each Holder of a Security, by his acceptance thereof, agree that (a) the Securities of any series which by their terms are subordinated and junior in right of payment of the principal of, premium (premium, if any) , and interest on and any Additional Amounts with respect to each and such securities (all the Securities and (b) any other payment in respect of the Securitiesforegoing, including on account of the acquisition a "Payment or redemption of Securities by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, Distribution") to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness ("Subordinated Securities") whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed, shall comply with the provisions --48-- of this Article 11, and each Holder of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice Subordinated Securities of such default to the Company series by the holders its acceptance thereof likewise agrees. A Payment or Distribution shall include any asset of Senior Indebtedness any kind or any trustee thereforcharacter, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in may consist of cash, securities or other property, securities, by set-off or otherwise) , and shall be made or agreed to be made on account of the principal of or interest on include, without limitation, any of the Securitiespurchase, or in respect of any redemption, retirement, purchase redemption or other acquisition of any the Subordinated Securities of the Securities. In series or the event ofmaking of any deposit of funds or securities pursuant to this Indenture (including, without limitation, any deposit pursuant to Article 8 hereof).
(1b) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all The Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first continue to be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least Senior Indebtedness and entitled to the extent provided in benefit of these subordination provisions with respect irrespective of any amendment, modification or waiver of any term of any instrument relating to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness refinancing of the Company at Senior Indebtedness.
(c) All the time outstanding provisions of this Indenture and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Subordinated Securities of any series shall be paid or delivered directly subject to the holders provisions of Senior Indebtedness of the Company this Article 11 so far as they may be applicable thereto, except that nothing in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) this Article 11 shall have been paid in full. In the event thatapply to claims for, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred payments to, the holders Trustee under or pursuant to Section 7.07.
(d) No right of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities as herein provided shall at any time or in any way be affected or impaired by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Companyany Paying Agent, the Holders of the Subordinated Securities of each series shall be subrogated to all rights any series, the Trustee or the holders of the Senior Indebtedness, or by any noncompliance by the Company, any Paying Agent, the Holders of the Subordinated Securities of any holders series or the Trustee with any of the terms, provisions and covenants of the Subordinated Securities or this Indenture, regardless of any knowledge thereof that any such holder of Senior Indebtedness may have or be otherwise charged with.
(e) In the event that the Subordinated Securities of any series are declared due and payable before their expressed maturity because of the Company to receive any further payments or distributions applicable to the Senior Indebtedness occurrence of a default hereunder, (i) the Company until the indebtedness evidenced by the Securities will give prompt notice in writing of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed happening to the holders of Senior Indebtedness and (ii) all Senior Indebtedness shall forthwith become immediately due and payable upon demand, regardless of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsexpressed maturity thereof.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with payable in respect to of each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness. In the event (a) of any distribution of assets of the Company upon any dissolution, and such provisions are made winding up, liquidation or reorganization of the Company whether in bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of the holders assets and liabilities of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of the Company which complies with the requirements of Article Eight, or (b) that a default shall default in have occurred and be continuing with respect to the payment of any principal of (or premium, if any) or interest on or any Additional Amounts payable in respect of any Senior Indebtedness Indebtedness, or (c) that the principal of the Company when Securities of any series (or in the same becomes case of Original Issue Discount Securities, the portion of the principal amount thereof referred to in Section 502) shall have been declared due and payable pursuant to Section 502 and such declaration shall not have been rescinded and annulled as provided in Section 502, then:
(1) in a circumstance described in the foregoing clause (a) or (b) the holders of all Senior Indebtedness, and in the circumstance described in the foregoing clause (c) the holders of all Senior Indebtedness (other than Other Obligations) outstanding at the time the principal of such Securities (or in the case of Original Issue Discount Securities, such portion of the principal amount) shall have been so declared due and payable, whether at maturity shall first be entitled to receive payment of the full amount due thereon in respect of principal, premium (if any), Interest and Additional Amounts, or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money's worth, before the Holders of any of the Securities are entitled to be made receive any payment on account of the principal of (or premium, if any) or interest on or any of the Securities, or Additional Amounts in respect of any redemption, retirement, purchase or other acquisition of any of the indebtedness evidenced by the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,;
(2) any proceeding for the liquidationpayment by, dissolution or other winding up distribution of the Companyassets of, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, property or securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company as 109 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 subordinate, at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securitiessecurities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at holders of the time outstanding and to any securities issued in respect thereof under any Senior Indebtedness are not altered by such plan of reorganization or readjustment), to which would otherwise (but for these subordination provisions) be payable or deliverable in respect the Holders of any of the Securities would be entitled except for the provisions of any series this Article shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Company indebtedness evidenced by the Securities under this Indenture; and
(including any interest thereon accruing after the commencement of any such proceedings3) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Company of any character kind or any securitycharacter, whether in cash, property or securities or other property (other than securities 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 are is subordinate, at least to the extent provided in these subordination provisions this Article with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at the time outstanding and to any securities issued in respect thereof under any holders of Senior Indebtedness are not altered by such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention Holders of any of the terms hereof Securities before all Senior Indebtedness is paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of the Company at the time outstanding in accordance with the priorities then existing among such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company Except as ---------------------------------------------- otherwise specified as contemplated by Section 2.3 for any series of Securities, the Issuer covenants and agrees, and each Holder of a Security, by his acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities of any series and the payment of the principal of, of and any premium (if any) and or interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, each series is subordinatedsubordinate, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness. Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any one amendment, modification or more waiver of them may enforce such provisionsany term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. In the event (a) of any payment by, or distribution of assets of, the Issuer of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Issuer, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or (b) subject to the provisions of Section 10.2 that the Company (i) a default shall default in have occurred and be continuing with respect to the payment of principal, interest or any principal of (or premium, if any) or interest other monetary amounts due and payable on any Senior Indebtedness and such default shall have continued beyond the period of grace, if any, specified in the Company when instrument evidencing such Senior Indebtedness (and the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon Trustee shall have received written notice of such default to thereof from the Company by the Issuer or one or more holders of Senior Indebtedness or their representative or representatives or the Trustee or trustees under any trustee thereforindenture pursuant to which any such Senior Indebtedness may have been issued), unless and until such default or (ii) the maturity of any Senior Indebtedness shall have been cured or waived or accelerated because of a default in respect of such Senior Indebtedness (and the Trustee shall have ceased received written notice thereof from the Issuer or one or more holders of Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to existwhich any such Senior Indebtedness may have been issued), no direct then:
(i) the holders of all Senior Indebtedness shall first be entitled to receive, in the case of (a) above, payment of all amounts due or indirect to become due upon all Senior Indebtedness and, in the case of subclauses (i) and of clause (b) above, payment (in cashof all amounts due thereon, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money's worth, before the Holders of any of the Securities are entitled to be made receive any payment on account of the principal of or any premium or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, including, without limitation, any payments made pursuant to Article XIII;
(ii) any payment by, or distribution of assets of, the Issuer of any kind or character, whether in cash, property or securities, to which the Holders of any of the Securities would be entitled except for the provisions of this Article, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Issuer being subordinated to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment)Securities, which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered by the Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Company indebtedness evidenced by such Securities; and
(including any interest thereon accruing after the commencement of any such proceedingsiii) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Issuer of any character kind or any securitycharacter, whether in cash, securities property or other property (other than securities securities, including any such payment or distribution which may be payable or deliverable by reason of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to any other indebtedness of the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Issuer being subordinated to the payment of all Senior Indebtedness such Securities, in respect of principal of or any premium or interest on any of the Company at Securities or in connection with the time outstanding and to repurchase by the Issuer of any securities issued in respect thereof under any such plan or reorganization or readjustment)of the Securities, shall be received by the Trustee or any Holder in contravention the Holders of any of the terms hereof Securities when such payment or distribution is prohibited pursuant to this Section, such payment or security shall be received in trust for the benefit of, and distribution shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness of or their representative or representatives or to the Company at the time outstanding in accordance with the priorities then existing among trustee or trustees under any indenture pursuant to which any instruments evidencing any such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness Indebtedness. Notwithstanding the foregoing, at any time after the ____ day following the date of deposit of money or U.S. Government Obligations pursuant to Section 9.1(a) (provided all other conditions set out in such Section shall have been satisfied) the Company, shall, as between the Company funds so deposited and its creditors other than the any interest thereon will not be subject to any rights of holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery those arising under this Article. For purposes of this Indenture Article X, the words "cash, property or securities" shall not be deemed to an agent include shares of stock of the Issuer as reorganized or readjusted, or securities of the Issuer or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article with respect to the Securities to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior Indebtedness is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment. The consolidation of the Company at Issuer with, or the time outstanding, be necessary or appropriate to assure the effectiveness merger of the subordination effected by these provisionsIssuer into, another Person or the liquidation or dissolution of the Issuer following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Section 3.8 hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section if such other Person shall, as part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Section 3.8.
Appears in 1 contract
Samples: Indenture (C Cor Net Corp)
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In Indebtedness.
(b) Subject to Section 13.4, if (i) the event that the Company Issuer shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company Issuer and the Trustee by the holders of Senior Indebtedness or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived waived, or shall have has ceased to exist, or any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofIssuer (or cash in lieu of fractional shares thereof).
(1c) If any default (other than a default described in paragraph (b) of this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the Issuer and the Trustee of written notice thereof (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness specifying an election to prohibit such payment and other action by the Issuer in accordance with the following provisions of this paragraph (c), the Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) of this Section 13.1 during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Issuer may resume payments on the Securities following such Payment Blockage Period. Any number of Payment Notices may be given; provided, however, that (i) not more than one Payment Notice shall be given within a period of any 360 consecutive days, and (ii) no default that existed upon the date of such Payment Notice or the commencement of such Payment Blockage Period (whether or not such event of default is on the same issue of Senior Indebtedness) shall be made the basis for the commencement of any other Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver, conservator, liquidator or trustee of the Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Code), and is not dismissed within 60 days after such filing; or (ii) the Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of debt, dissolution, liquidation or other relief with respect to itself or its debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Code) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails generally to, or cannot, pay its creditors debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyIssuer takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, Securities to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), adjustment) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Issuer ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Issuer the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred toto the trustee in bankruptcy, the holders receiver, liquidating trustee, custodian, agent or other Person making payment or distribution of assets of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders Issuer for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of such Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyIssuer or any Holder of Securities. Nothing contained herein shall impair, as between the Issuer and the Holders of Securities of each series, the obligation of the Issuer to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of to remove cash, securities or other property otherwise payable or deliverable to the Company Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company Issuer and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company or consent to Issuer in respect of any security interest the filing creation of a financing statement with respect thereto) as may, in the opinion of counsel designated which is not prohibited by the holders provisions of a majority in principal amount this Indenture.
(i) The securing of any obligations of the Senior Indebtedness of Issuer, otherwise ranking on a parity with the Company at Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Samples: Subordinated Indenture (Citizens Communications Co)
Securities Subordinated to Senior Indebtedness. (a) The Company Issuer covenants and agrees, and each Holder of a SecuritySecurities of each series, by his acceptance thereof, agree likewise covenants and agrees, that (a) the payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to each and all anything in this Indenture or the Securities and (b) of any other payment in respect of series to the Securitiescontrary notwithstanding, including on account of the acquisition or redemption of Securities indebtedness evidenced by the Company, Securities of each series is subordinatedsubordinate and junior in right of payment, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedherein, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding on the date of execution of this Indenture or thereafter created, incurred or assumed, and such provisions are made that the subordination is for the benefit of the holders of such Senior Indebtedness, but the Securities shall in all respects rank pari passu with all other Senior Subordinated Indebtedness of the Issuer. The Securities shall rank senior to all existing and future Indebtedness of the Issuer that is neither Senior Indebtedness nor Senior Subordinated Indebtedness and any one or more only Indebtedness of them may enforce such provisions. In the event Issuer that is Senior Indebtedness shall rank senior to the Company Securities in accordance with the provisions set forth herein.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the payment of any principal of (or of, premium, if any) , or interest interest, if any, on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company Issuer by the holders of Senior Indebtedness or any trustee therefor, unless and until such until, in either case, the default shall have has been cured or waived waived, and any such acceleration has been rescinded or shall have ceased to existsuch Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, or interest interest, if any, on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofIssuer (or cash in lieu of fractional shares thereof).
(1c) If any default (other than a default described in paragraph (b)) shall occur under the Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the Issuer and the Trustee of written notice thereof (a "Payment Notice") from or on behalf of holders of such Senior Indebtedness specifying an election to prohibit such payment and other action by the Issuer in accordance with the following provisions of this paragraph, the Issuer may not make any payment or take any other action that would be prohibited by paragraph (b) above during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment Notice and ending on the earlier of (i) the date, if any, on which the holders of such Senior Indebtedness or their representative notify the Trustee that such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, the Issuer may resume payments on the Securities after such Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver, conservator, liquidator or trustee of the Issuer or of any of its property is appointed by the order or decree of any court or agency or supervisory authority having jurisdiction, and such decree or order remains in effect for more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its property is sequestered by court order and such order remains in effect for more than 60 days or (D) a petition is filed against the Issuer under any state or federal bankruptcy, reorganization, arrangement, insolvency, bankruptcyreadjustment of debt, receivershipdissolution, liquidation or receivership law of any jurisdiction whether now or hereafter in effect (including without limitation the Bankruptcy Code), and is not dismissed within 60 days after such filing; or (ii) the Issuer (A) commences a voluntary case or other proceeding seeking liquidation, reorganization, readjustmentarrangement, composition insolvency, readjustment of debt, dissolution, liquidation or other relief with respect to itself or its debt or other liabilities under any bankruptcy, insolvency or other similar proceeding relating law now or hereafter in effect (including without limitation the Bankruptcy Code) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (B) consents to any such relief or to the Companyappointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (C) fails generally to, or cannot, pay its creditors debts generally as they become due or its property,
(2D) takes any corporate action to authorize or effect any of the foregoing; or (iii) any proceeding for the liquidation, dissolution or other winding up Subsidiary of the CompanyIssuer takes, voluntary suffers or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) permits to exist any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of events or conditions referred to in the Companyforegoing clause (i) or (ii), then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), ) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Issuer ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Issuer the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company Issuer or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these the subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment or distribution or security of securities shall be received in trust for the benefit of, of and shall be paid over or delivered and transferred to, to the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. .
(f) No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyIssuer or any Holder of Securities. Nothing contained herein shall impair, as between the Issuer and the Holders of Securities of each series, the obligation of the Issuer to pay to such Holders the principal of and interest, if any, on such Securities or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of to receive cash, securities or other property otherwise payable or deliverable to the Company Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments payment or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, full and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, as between the Company Issuer and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Issuer on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such series. .
(h) The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company Issuer in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Samples: Senior Subordinated Indenture (Seagull Energy Corp)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, thereof is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on all Senior Indebtedness specified before the Holders of the Securities are entitled to receive any payment on account of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such Security proceedings in respect of the Securities after giving effect to any concurrent payment or distribution in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any respect of such Senior Indebtedness, except securities which are subordinate and junior in right of payment to the payment of all Senior Indebtedness then outstanding;
(2) In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (1) or the following clause (3) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such provisions Security so becomes due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 502, be entitled to receive payment in full of all principal of, and premium and interest on, all such Senior Indebtedness before the Holders of the Securities of such series are made entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(3) In the benefit of event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one to accelerate the maturity thereof, if either
(a) notice of such default, in writing or more of them may enforce such provisions. In the event that by telegram, shall have been given to the Company and to the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal or interest and within 90 days in the case of any principal other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 1601(3) in any twelve months period, or
(or b) judicial proceedings shall be pending in respect of such default, the Holders of the Securities and the Trustee for their benefit shall not be entitled to receive any payment on account of principal, premium, if any) , or interest on and Additional Amounts thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on, such Senior Indebtedness shall have been made or provided for. The Trustee, forthwith upon receipt of any notice received by it pursuant to this Section 1601(3), shall, as soon as practicable, send a notice thereof to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security Register. In case despite the foregoing provisions, any payment or distribution shall, in any such event, be paid or delivered to any Holder of the Company when the same becomes due and payable, whether at maturity Securities or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by Trustee for their benefit before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid and delivered to the holders of Senior Indebtedness (or any trustee therefor, unless and their duly authorized representatives) until such default all Senior Indebtedness shall have been cured or waived or paid in full. The Company shall have ceased give written notice to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition arrangement or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after within the commencement meaning of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereofthis Section 1601. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, Upon any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities assets of the Company or any other corporation provided for by a plan of reorganization or readjustment referred to in this Article Fifteen, the payment of which are subordinateTrustee, at least subject to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Section 315(a) through 315(b) of the Company at Trust Indenture Act, and the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), Holders of the Securities shall be received by entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered to the Trustee or any Holder in contravention to the Holders of any of the terms hereof such payment or distribution or security shall be received in trust Securities, for the benefit of, and shall be paid over or delivered and transferred topurpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the and other indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. The Trustee shall be subrogated entitled to all rights conclusively rely on the delivery to it of any holders a written notice by a person representing himself to be a holder of Senior Indebtedness of the Company to receive any further payments (or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities a trustee or agent on behalf of such series shall have holder) to establish that such notice has been paid in full, and such payments or distributions received given by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the Companyevent that the Trustee determines, shallin good faith, that further evidence is required with respect to the right of any person as between the Company and its creditors other than the holders a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 1601, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Company, on Trustee as to the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account amount of Senior Indebtedness of held by such person, as to the Companyextent to which such person is entitled to participate in such payment or distribution, and not on account of as to other facts pertinent to the Securities rights of such series. The Trustee person under this Section 1601, and Holders will take if such action (including, without limitationevidence is not furnished, the delivery of this Indenture Trustee may defer any payment to an agent for the holders of Senior Indebtedness of the Company or consent such person pending judicial determination as to the filing right of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate such person to assure the effectiveness of the subordination effected by these provisionsreceive such payment.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a SecuritySecurities, by his its acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness evidenced by the Securities and the payment of the principal ofof (and premium, premium (if any) and interest on and any Additional Amounts with respect to each and all of the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of Senior Indebtedness. Anything in the Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(a) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on, or other amounts in respect of, all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer before the Holders of the Securities are entitled to all Persons whoreceive any payment on account of principal, in reliance upon such provisionspremium, become holders ofif any, or continue interest upon the Securities, and to holdthat end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such proceedings in respect of the Securities after giving effect to any concurrent payment or distribution in respect of such Senior Indebtedness;
(b) In the event that the Securities of any series are declared or otherwise become due and payable before their expressed maturity because of the occurrence of certain Events of Default hereunder (under circumstances when the provisions of the foregoing clause (a) or the following clause (c) shall not be applicable), then the holders of Senior Indebtedness outstanding at the time such Securities so become due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to this Section 5.1 of Article V, be entitled to receive payment in full of all principal of, and premium and interest on or other amounts in respect of, all such provisions Senior Indebtedness before the Holders of such Securities are made entitled to receive any payment on account of principal of, premium, if any, or interest on, such Securities; provided, however, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(c) In the benefit of event that any default shall occur and be continuing, in each case, with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness and any one or more to accelerate the maturity thereof, if either
(1) written notice of them may enforce such provisions. In the event that default shall have been received by the Company and the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in the payment of principal, premium, if any, or interest and within 90 days in the case of any other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 5.1(c) of Article V in any twelve month period, or
(2) judicial proceedings shall be pending in respect of such default, then the Holders of the Securities and the Trustee for the benefit of the Holders shall not be entitled to receive any payment on account of principal of (thereof, or premium, if any) , or interest on thereon (including any such payment which would cause such default) unless payment in full of all principal of, and premium and interest on, or other amounts in respect of, such Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity shall have been made or at a date fixed provided for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist. The Trustee, no direct forthwith upon receipt of any notice received by it pursuant to this Section 5.1(c) of Article V, shall, as soon as practicable, send a notice thereof to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security register. In case despite the foregoing provisions, any payment or indirect distribution other than Exempted Distributions shall, in any such event, be paid or delivered to any Holder of the Securities or to the Trustee for the benefit of the Holders before all Senior Indebtedness shall have been paid in full, such payment (in cash, property, securities, by set-off or otherwise) distribution shall be made held in trust for and so paid and delivered to the holders of Senior Indebtedness (or agreed their duly authorized representatives) until all Senior Indebtedness shall have been paid in full. The Company shall give written notice to be made on account the Trustee within five days after the occurrence of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition arrangement or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan voluntary liquidation, dissolution or winding up proceeding within the meaning of reorganization this Section 5.1 of Article V. Upon any payment or readjustment distribution of assets of the payment of which is subordinateCompany referred to in this Article V, at least the Trustee, subject to the extent provided provisions of Section 315(a) through 315(b) of the Trust Indenture Act, and the Holders of the Securities shall be entitled to rely upon a certificate of the trustee in these subordination provisions with respect bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered to the indebtedness evidenced by Trustee or to the Holders of the Securities, for the purpose of ascertaining the persons entitled to the participate in such payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment)distribution, which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness and other indebtedness of the Company in accordance with Company, the priorities then existing among amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article V. The Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a person representing (as evidenced by such holders until all holder to the satisfaction of the Trustee) itself to be a holder of Senior Indebtedness or Other Company Obligations (or a trustee or agent on behalf of such holder similarly as evidenced to the satisfaction of the Trustee) to establish that such notice has been given by a holder of Senior Indebtedness or Other Company Obligations (including any interest thereon accruing after the commencement or a trustee or agent on behalf of any such proceedings) shall have been paid holder). In the event that the Trustee determines, in fullgood faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness or Other Company Obligations to participate in any payment or distribution pursuant to this Section 5.1 of Article V, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness or Other Company Obligations 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 5.1 of Article V, and if such evidence is not furnished, the Trustee may defer any payment or distribution to such person pending judicial determination as to the right of such person to receive such payment or distribution. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any character kind or any securitycharacter, whether in cash, securities property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other property (other than securities indebtedness of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, being subordinate to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment)Securities, shall be received by the Trustee or any Holder in contravention of any Holders of the terms hereof such payment or distribution or security shall be received in trust for the benefit ofSecurities which, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment terms of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall this Article V should be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed payable to the holders of Senior Indebtedness or Other Company Obligations and if such fact shall, at or prior to the time of such payment or distribution, have been actually known by the Trustee or, as the case may be such Holder, then upon such actual knowledge, such payment or distribution shall be paid over by the Trustee or such Holders, as the case may be, to the holders of such Senior Indebtedness or Other Company Obligations (or the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment of assets of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions).
Appears in 1 contract
Samples: First Supplemental Indenture (Western Alliance Bancorporation)
Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, Securities by his acceptance thereof likewise covenants and agrees, that all Securities are subject to the provisions of this Article 5; and each Person holding any Security, whether upon original issue or upon transfer or assignment thereof, agree accepts and agrees to be bound by such provisions and acknowledges that (a) such provisions are for the benefit of, and shall be enforceable directly by, the holders of Senior Indebtedness. Each Holder of Securities authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate, in the sole discretion of the Trustee, to acknowledge or effectuate the subordination between the Holders of Securities and the holders of Senior Indebtedness as provided in this Article and appoints the Trustee as such Holder's attorney-in-fact for any and all such purposes. The payment of the principal of, premium premium, if any, and interest (including Contingent Interest and Liquidated Damages, if any) and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect due pursuant to this Indenture or any Securities issued hereunder (including, without limitation, the payment or deposit of the Securities, including on account of the acquisition Redemption Price or redemption of Securities by the Company, is subordinatedRepurchase Price pursuant to Article 3 and any deposit pursuant to Section 6.3) shall, to the extent and in the manner provided hereinafter set forth, be subordinated and subject in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, whether outstanding at the date of this Indenture or thereafter created, incurred, assumed or guaranteed. Each Holder by accepting a Security acknowledges and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event agrees that the Company shall default subordination provision set forth in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit ofthis Article 5 are, and shall be paid over or delivered are intended to be, an inducement and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application consideration to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of whether such Senior Indebtedness was created before or after the issuance of the Company then outstanding. Upon the payment in full of all Securities, to acquire and continue to hold, or to continue to hold, such Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series shall be subrogated to all rights of any holders and such holder of Senior Indebtedness of the Company shall be deemed conclusively to receive any further payments have relied upon such subordination provisions in acquiring and continuing to hold, or distributions applicable in continuing to the hold, such Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in fullIndebtedness, and such payments or distributions received by holder is made an obligee hereunder and may enforce directly such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.
Appears in 1 contract
Samples: Indenture (Gencorp Inc)
Securities Subordinated to Senior Indebtedness. The Company Corporation covenants and agrees that anything in this Indenture or the Securities of any Series to the contrary notwithstanding, the indebtedness evidenced by the Securities of each Series is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein, and each Holder of a SecuritySecurities of each Series, by his acceptance thereof, agree that (a) whether upon original issue or upon transfer or assignment thereof, likewise covenants and agrees to the payment of the principal of, premium (if any) subordination herein provided and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities shall be bound by the Company, is subordinated, to provisions hereof. If the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company Corporation shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity Maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company Corporation by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off setoff or otherwise) shall be made or agreed to be made on account of the principal of of, premium, if any, on, or interest on any of the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities. In Securities other than those made in capital stock of the event ofCorporation (or cash in lieu of fractional shares thereof).
(1a) any without the consent of the Corporation a court having jurisdiction shall enter an order for relief with respect to the Corporation under the Bankruptcy Code or without the consent of the Corporation a court having jurisdiction shall enter a judgment, order or decree adjudging the Corporation a bankrupt or insolvent, or enter an order for relief for reorganization, arrangement, adjustment or composition of or in respect of the Corporation under the Bankruptcy Code or applicable state insolvency law, or (b) the Corporation shall institute proceedings for entry of an order for relief with respect to the Corporation under the Bankruptcy Code or for an adjudication of insolvency, bankruptcyor shall consent to the institution of bankruptcy or insolvency proceedings against it, receivershipor shall file a petition seeking, liquidation, or seek or consent to reorganization, readjustmentarrangement, composition or other similar proceeding relating relief under the Bankruptcy Code or any applicable state law, or shall consent to the Companyfiling of such petition or to the appointment of a receiver, its creditors custodian, liquidator, assignee, trustee, sequestrator or similar official (other than a custodian pursuant to 8 Delaware Code Sec. 226 or any similar statute under other state laws) of the Corporation or of substantially all of its property,
(2) any proceeding for , or the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any Corporation shall make a general assignment by the Company for the benefit of creditorscreditors as recognized under the Bankruptcy Code, or
(4) any other marshalling of the assets of the Company, then all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other propertyproperty (other than as described below), shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Corporation or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), ) which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series Series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event thatof any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holder of the Securities, together with the holders of any obligation of the Corporation ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Corporation the amounts at the time due and owing on account of unpaid principal of and interest, if any, on the Securities and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Corporation ranking junior to the Securities and such other obligations. If, notwithstanding the foregoing, any payment or distribution of any character or any securitycharacter, whether in cash, securities or other property (other than securities of the Company Corporation or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time then outstanding and to any securities issued in respect thereof under any such plan or of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof hereof, such payment payment- or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present Nothing contained herein shall impair, as between the Corporation and the Holders of Securities of each Series, the obligation of the Corporation to pay to such Holders the principal of and interest, if any, on such Securities or future holder prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a default or Event of any Default hereunder, all subject to the rights of the holders of the Senior Indebtedness of to receive cash, securities or other property otherwise payable or deliverable to the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the CompanyHolders. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the CompanyIndebtedness, the Holders of Securities of each series Series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series Series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the CompanyIndebtedness, shall, shall as between the Company Corporation and its creditors other than the holders of Senior Indebtedness of the CompanyIndebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company Corporation on account of Senior Indebtedness of the CompanyIndebtedness, and not on account of the Securities of such seriesSeries. The Trustee and Holders will take such action (including, without limitation, the delivery provisions of this Indenture to an agent for the holders Section 13.1 shall not impair any rights, interests, remedies or powers of Senior Indebtedness any secured creditor of the Company Corporation in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture. The securing of any obligations of the Corporation, otherwise ranking on a parity with the Securities or consent ranking junior to the filing of Securities, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a financing statement parity with respect thereto) as may, in the opinion of counsel designated by Securities or ranking junior to the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsSecurities.
Appears in 1 contract
Samples: Indenture (Usg Corp)
Securities Subordinated to Senior Indebtedness. The Company Company, for itself and its successors, and each Holder of a SecurityHolder, by his or her acceptance thereofof Securities, agree agrees that (a) the payment of the principal of, premium (if any) Principal of and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is subordinated, to the extent and in the manner provided in such Security or in the supplemental indenture pursuant to which such Security is issuedthis Article 10, to the prior right of payment in full to all present and future Senior Indebtedness, and that these subordination provisions are for the benefit of all the holders of Senior Indebtedness. The provisions of this Article 10 are for the benefit of the holders of the Senior Indebtedness specified from time to time (and their successors and assigns) and shall be enforceable directly by them and their respective representatives directly against the Company, the Trustee and the Holders (and their successors and assigns). The provisions of this Article 10 shall be a continuing agreement and shall be irrevocable and shall remain in such Security full force and effect until payment in the full of the Senior Indebtedness in cash or in such supplemental indenture. Such subordination provisions cash equivalents, and shall constitute a continuing and irrevocable offer to all Persons who, in reliance upon such provisions, who become holders of, or continue to hold, any of such Senior Indebtedness, and such provisions are made for the benefit of the holders of Indebtedness (whether such Senior Indebtedness and any one was created or more of them may enforce such provisions. In acquired before or after the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any issuance of the Securities), or in respect each of any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(2) any proceeding which holders shall be deemed for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all purposes hereof to have acquired Senior Indebtedness in reliance upon the provisions of the Company (including any interest thereon accruing after this Article 10. The provision of this Article 10 shall survive the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities reorganization or other property, shall be made proceedings with respect to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan Person and the discharge of any claim in connection with such reorganization or readjustment other proceedings, including, without limitation, the payment discharge of which is subordinate, at least to any Senior Indebtedness. The holders of the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness and their respective representatives are hereby authorized to demand specific performance of the Company provisions of this Article 10 at the any time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of when the Company or any other corporation provided for by Holder shall have failed to comply with any provision of this Article 10 applicable to it, and the Company and each Holder hereby irrevocably waives any defense based on the adequacy of a plan of reorganization or readjustment the payment of which are subordinate, remedy at least law that might be asserted as a bar to the extent provided remedy of specific performance hereof in these subordination provisions with respect to the indebtedness evidenced any action brought therefor by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionstheir respective representatives.
Appears in 1 contract
Securities Subordinated to Senior Indebtedness. The Company Issuer(s) covenant and agree, and each Holder of a SecuritySecurities of any series, by his or her acceptance thereof, agree likewise covenants and agrees, that (a) the indebtedness represented by the Securities and the payment of the principal ofof (and premium, premium (if any) ), interest, if any, on, and interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment Amounts, if any, payable in respect of the Securities, including on account of the acquisition or redemption of Securities by the Company, is hereby expressly subordinated, to the extent and in the manner provided hereinafter set forth, in such Security or in the supplemental indenture pursuant to which such Security is issued, right of payment to the prior payment in full of all Senior Indebtedness specified in such Security or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such Senior Indebtedness. Notwithstanding anything contained herein to the contrary, and such provisions are made payments from money or the proceeds of Government Obligations held in trust under Article 8 by the Trustee for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event that the Company shall default in the payment of any principal of (or premium, if any) or and interest on the Securities of any series shall not be subordinated to the prior payment of any Senior Indebtedness of the Company when Issuer(s) or subject to the same becomes restrictions set forth in this Article 13, and none of the Holders shall be obligated to pay over any such amount to the Issuer(s) or any holder of Senior Indebtedness of the Issuer(s) or any other creditor of the Issuer(s). In the event (a) of any distribution of assets of the Issuer(s) upon any dissolution, winding up, liquidation or reorganization of the Issuer(s) whether in a bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Issuer(s) or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of Ventas, Inc. which complies with the requirements of Article 5, or (b) that a default shall have occurred and be continuing with respect to the payment of principal of (and premium, if any), interest, if any, on, and Additional Amounts, if any, payable in respect of any Senior Indebtedness, or (c) that the principal of the Securities of any series (or in the case of Original Issue Discount Securities or Indexed Securities, the portion of the principal amount thereof referred to in Section 6.02) shall have been declared due and payable pursuant to Section 6.02 and such declaration shall not have been rescinded and annulled as provided in Section 6.02, then:
(1) in a circumstance described in the foregoing clause (a) or (b) the holders of all Senior Indebtedness, and in the circumstance described in the foregoing clause (c) the holders of all Senior Indebtedness outstanding at the time the principal of such Securities (or in the case of Original Issue Discount Securities or Indexed Securities, such portion of the principal amount) shall have been so declared due and payable, whether at maturity shall first be entitled to receive payment of the full amount due thereon in respect of principal of (and premium, if any), interest, if any, on, and additional amounts, if any, or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) provision shall be made for such payment in money or agreed money's worth, before the Holders of any of the Securities of any series are entitled to be made receive any payment on account of the principal of or interest on any of the Securities(and premium, or if any), interest, if any, on, and Additional Amounts, if any, in respect of any redemption, retirement, purchase or other acquisition of any of the indebtedness evidenced by such Securities. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,;
(2) any proceeding for payment by, or distribution of assets of, the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3Issuer(s) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, property or securities or other property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company Issuer(s) as reorganized or readjusted or securities of the Issuer(s) or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions this Article 13 with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at holders of the time outstanding and to any securities issued in respect thereof under any Senior Indebtedness are not altered by such plan of reorganization or readjustment), to which would otherwise (but for these subordination provisions) be payable or deliverable in respect the Holders of any of the Securities of any series would be entitled except for the provisions of this Article 13 shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably according to the Company aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in accordance with the priorities then existing among such holders until full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of any of the Company (including any interest thereon accruing after the commencement Securities of any such proceedingsseries under this Indenture; and
(3) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Issuer(s) of any character kind or any securitycharacter, whether in cash, property or securities or other property (other than securities of the Company Issuer(s) as reorganized or readjusted or securities of the Issuer(s) or any other corporation provided for by a plan of reorganization or readjustment the payment of which are is subordinate, at least to the extent provided in these subordination provisions this Article 13 with respect to the indebtedness evidenced by the SecuritiesSecurities of any series, to the payment of all Senior Indebtedness Indebtedness, provided that the rights of the Company at the time outstanding and to any securities issued in respect thereof under any holders of Senior Indebtedness are not altered by such plan or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention Holders of any of the terms hereof Securities of any series before all Senior Indebtedness is paid in full, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, to the holders of the such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of the Company at the time outstanding in accordance with the priorities then existing among such holders Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay unpaid until all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid in full, and such payments after giving effect to any concurrent payment or distributions received by such Holders, by reason of such subrogation, of cash, securities distribution (or other property which otherwise would be paid or distributed provision therefor) to the holders of such Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisionsIndebtedness.
Appears in 1 contract
Samples: Indenture (Brookdale Living Communitites of New York-Gb, LLC)
Securities Subordinated to Senior Indebtedness. The Notwithstanding the provisions of Section 506 or any other provision herein or in any Security, the Company and each Holder of a Securitythe Trustee and, by his their acceptance thereof, agree that the Holders of the Securities (a) covenant and agree that all payments by the payment Company of the principal of, of and any premium (if any) and or interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition than Securities which have been discharged pursuant to Article Four or redemption of Securities by the Company, is subordinated, that provide for a sinking fund pursuant to the extent and in the manner provided in such Security Board Resolution, Officers' Certificate or in the supplemental indenture pursuant establishing the series as to which such Security sinking fund is issued, applicable) shall be subordinated in accordance with the provisions of this Article Sixteen in right of payment to the prior payment in full full, in cash or cash equivalents, of all Senior Indebtedness specified in such Security amounts payable on, under or in such supplemental indenture. Such subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, any of such connection with Senior Indebtedness, and such provisions are made for the benefit of the holders of such Senior Indebtedness and any one or more of them may enforce such provisions. In the event (b) acknowledge that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness of the Company when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor, unless and until such default shall have been cured or waived are or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made relying on account of the principal of or interest on any of the Securities, this Article Sixteen. Nothing herein or in respect any Security is intended to or shall limit the amount of any redemption, retirement, purchase or other acquisition Senior Indebtedness the Company may incur. Section 1602. Priority and Payment of any of the Securities. In the event ofProceeds in Certain Events: Remedies Standstill.
(1) Upon any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition payment or other similar proceeding relating to the Company, its creditors distribution of assets or its property,
(2) any proceeding for the liquidation, dissolution or other winding up securities of the Company, voluntary or involuntaryas the case may be, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshalling of the assets of the Company, all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment kind or distributioncharacter, whether in cash, securities property or other propertysecurities, shall be made to upon any Holder of any of the Securities on account thereof. Any payment dissolution or distribution, whether in cash, securities winding up or other property (other than securities of the Company total or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Indebtedness of the Company in accordance with the priorities then existing among such holders until all Senior Indebtedness of the Company (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which are subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness of the Company at the time outstanding and to any securities issued in respect thereof under any such plan partial liquidation or reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness of the Company at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness of the Company remaining unpaid, to the extent necessary to pay all such Senior Indebtedness of the Company in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness of the Company is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness of the Company shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act on the part of the Company. Senior Indebtedness of the Company shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness of the Company then outstanding. Upon the payment in full of all Senior Indebtedness of the Company, the Holders of Securities of each series shall be subrogated to all rights of any holders of Senior Indebtedness of the Company to receive any further payments whether voluntary or distributions applicable to the Senior Indebtedness of the Company until the indebtedness evidenced by the Securities of such series shall have been paid involuntary, or in fullbankruptcy, and such payments or distributions received by such Holdersinsolvency, by reason of such subrogation, of cash, securities receivership or other property which otherwise would be paid proceedings, all amounts payable on, under or distributed to the holders of Senior Indebtedness of the Company, shall, as between the Company and its creditors other than the holders of Senior Indebtedness of the Company, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness of the Company, and not on account of the Securities of such series. The Trustee and Holders will take such action (including, without limitation, the delivery of this Indenture to an agent for the holders of Senior Indebtedness of the Company or consent to the filing of a financing statement in connection with respect thereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Senior Indebtedness of the Company at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.Senior
Appears in 1 contract
Samples: Indenture (Apache Trust Ii)
