Subordination Provisions. The Sponsor covenants and agrees, and the Servicer, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities to the extent and in the manner set forth in the following clauses of this paragraph 7: (i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash. (b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities. (c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full. (d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer). (e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case. (f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date. (g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made. (h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property. (i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor. (j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 5 contracts
Samples: Sale and Servicing Agreement (GreenPoint Home Equity Loan Trust 2004-4), Sale and Servicing Agreement (Greenpoint Mortgage Securities LLC), Sale and Servicing Agreement (Greenpoint Mortgage Securities LLC)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator and any other holder of this Company Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under paragraph 1(n) of Exhibit IV of the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoingforegoing during any Bankruptcy Proceeding: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Issuer (or the Administrator acting on behalf of the NoteholdersIssuer’s behalf), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d)(ii) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under paragraph 1(n) of Exhibit IV of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee Administrator and the Insurer Issuer in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Issuer, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Ugi Corp /Pa/), Purchase and Sale Agreement (Ugi Corp /Pa/), Purchase and Sale Agreement (Ugi Corp /Pa/)
Subordination Provisions. The Sponsor Company covenants and agrees, and the Servicer, each Originator and any other holder of this Company Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this NoteCompany Note (or a beneficial interest herein), likewise covenants and agrees, that the agrees that:
(a) No payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance or other distribution of the Senior Liabilities Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent and in such payment or other distribution is permitted under Section 1(n) of Exhibit IV to the manner set forth in the following clauses of this paragraph 7:Receivables Purchase Agreement;
(ib) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of DefaultBankruptcy Proceedings, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.Company Note;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall promptly be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders);
(d) forthwith. All Notwithstanding any payments and or distributions received by the Indenture Trustee Senior Interest Holders in respect of this Company Note, prior to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit occurrence of the Noteholders and Final Termination Date, the Insurer) first Holder shall not be subrogated to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment then existing rights of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions Interest Holders in respect of the Senior Liabilities.
(c) Upon Interests until the final payment Senior Interests have been paid and performed in full and in cash cash. Upon the occurrence of all Senior Liabilitiesthe Final Termination Date, the Servicer shall Holder will be subrogated to the then existing rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.Interest Holders, if any;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.collect this Company Note;
(g) [Reserved];
(h) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions or otherwise affecting these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify any Transaction Document (on the Sale and Servicing Agreement or any related documentterms set forth in such Transaction Document); and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(1) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 3 contracts
Samples: Master Framework Agreement (Vistra Corp.), Purchase and Sale Agreement (Vistra Corp.), Purchase and Sale Agreement (Vistra Corp.)
Subordination Provisions. The Sponsor Purchaser covenants and agrees, and the ServicerSeller, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities to the extent and in the manner set forth in the following clauses of this paragraph 7:
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorPurchaser, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Purchaser or any sale of all or substantially all of the assets of the Sponsor Purchaser except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer Seller shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Seller would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer Seller hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer Seller or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Seller relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer Seller receives any payment or other distribution of any kind or character from the Sponsor Purchaser or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer Seller to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the InsurerNoteholders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, Trustee or the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer Seller and the Noteholders and the InsurerNoteholders, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor Purchaser and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer Seller shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor Purchaser that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerSeller, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the InsurerNoteholders), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorPurchaser, its creditors (other than the Noteholders and the InsurerNoteholders) and the ServicerSeller, the Sponsor’s Purchaser's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Purchase Agreement or to affect the relative rights of the Servicer Seller and creditors of the Sponsor Purchaser (other than the Noteholders and the InsurerNoteholders).
(e) The Servicer Seller shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorPurchaser, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorPurchaser, unless, in the case of each of clauses (i) and (ii) above, the Servicer Seller shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer Seller shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Purchaser until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the InsurerNoteholders) may, from time to time, with the consent of the Insurer without notice to the ServicerSeller, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer Seller hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the InsurerNoteholders, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor Purchaser to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (Greenpoint Mortgage Securities Inc/), Mortgage Loan Purchase Agreement (Greenpoint Mortgage Securities Inc/), Mortgage Loan Purchase Agreement (Greenpoint Mortgage Securities Inc/)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator and any other holder of this Company Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(m) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the NoteholdersPurchasers), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(m) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance prior written consent of the Indenture Trustee Administrator and the Insurer Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (VWR Funding, Inc.), Purchase and Sale Agreement (SWIFT TRANSPORTATION Co)
Subordination Provisions. The Sponsor Purchaser covenants and agrees, and the ServicerSeller, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities to the extent and in the manner set forth in the following clauses of this paragraph 7:
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorPurchaser, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Purchaser or any sale of all or substantially all of the assets of the Sponsor Purchaser except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer Seller shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Seller would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.and
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Greenpoint Mortgage Securities Inc/), Mortgage Loan Purchase Agreement (Greenpoint Mortgage Securities Inc/)
Subordination Provisions. The Sponsor Borrower covenants and agrees, and the ServicerIntercompany Lender and any other assignee, transferee or pledgee of this Loan Agreement or any Intercompany Loans (collectively, the Intercompany Lender and any such other assignee, transferee or pledgee are called the “Holder”), by its acceptance of any sale, assignment, transfer or pledge of this NoteLoan Agreement or any Intercompany Loans, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities is the principal amount of and interest on the Intercompany Loans and any other payments owing under this Loan Agreement are hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 710:
(a) No payment or other distribution of the Borrower’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Loan Agreement or any Intercompany Loan except to the extent such payment or other distribution is either (i) permitted under Section 8.01(r) of the Receivables Financing Agreement or (ii) made on or after the Final Payout Date;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBorrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Borrower or any sale of all or substantially all of the assets of the Sponsor except pursuant to Borrower other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder or any Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Loan Agreement or any Intercompany Loan. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Loan Agreement or any Intercompany Loan to which the Servicer Holder or any Originator would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder and/or any Originator shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount owed under this Loan Agreement (and if the Holder and/or any Originator does not promptly do so, the Administrative Agent may), and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersLenders), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Loan Agreement or any Intercompany Loan, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder or any Originator receives any payment or other distribution of any kind or character from the Sponsor Borrower or from any other source whatsoever, in respect of this Loan Agreement or any Intercompany Loan, other than as expressly permitted by the Junior Liabilitiesterms of this Loan Agreement, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder or such Originator, as applicable, to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) forthwith. The Holder and each Originator will xxxx its books and records so as clearly to indicate that this Loan Agreement and the Insurer) forthwithIntercompany Loans are subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this NoteLoan Agreement or any Intercompany Loan, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon this Loan Agreement and the Junior LiabilitiesIntercompany Loans, and any balance thereof shall, solely as between the Servicer Intercompany Lender and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 4.01(a) of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Borrower and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Loan Agreement or any Intercompany Loan, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Loan Agreement or any Intercompany Loan) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 8.01(r) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder and the Originators, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) Loan Agreement is intended to or shall impair, as between the SponsorBorrower, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder and the Originators, the SponsorBorrower’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder for the benefit of the Originators the principal of and interest on the Intercompany Loans as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and the Originators and creditors of the Sponsor Borrower (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBorrower, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Loan Agreement or any rights in respect hereof or (ii) convert the Junior Liabilities this Loan Agreement or any Intercompany Loan into an equity interest in the SponsorBorrower, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Lender, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Borrower until at least one year and one day shall have passed since the Termination Final Payout Date.;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder or any Originator, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Lamar Media Corp/De), Purchase and Sale Agreement (Lamar Media Corp/De)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerSeller, by its acceptance of this Seller Note, likewise covenants and agrees, that the payment of all Junior Liabilities is obligations of the Company to the Seller under this Seller Note from or with the proceeds (such proceeds being the "Proceeds") of Receivables (as defined in the Pooling Agreement) or Related Property (as defined in the Pooling Agreement)(and any extensions, renewals, financing, refundings and replacements of all or any part of such obligations) (the "Seller Subordinated Debt") are hereby expressly subordinated in right of payment to the payment and performance of the obligations of the Company to the Trustee for the benefit of the Holders (as defined in the Pooling Agreement) howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due (the "Senior Liabilities Obligations") to the extent and in the manner set forth in this paragraph including each of the following clauses of this paragraph 7subparts:
(ia) Insolvency Events; Priority of Senior Obligations; Payments Made Directly to the Trustee. In the event of any bankruptcy, dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company (each an "Insolvency Event") or any sale of all or substantially all of the assets of the Sponsor Company (except pursuant to the Sale Pooling Agreement and Servicing Agreement any Supplement thereto),
(such proceedings being herein collectively called “Bankruptcy Proceedings”), and (iii) on and after the occurrence of an Event of Default, the Senior Liabilities Obligations shall first be paid and performed in full and in cash before the Servicer Seller shall be entitled to receive and to retain any payment or distribution from or with the Proceeds in respect of the Junior Liabilities. In order to implement Seller Subordinated Debt, whether of principal, interest or otherwise; and
(ii) any payment or distribution from or with the foregoing: (x) all payments and distributions Proceeds of any kind (including cash or character property arising from Proceeds which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Seller Subordinated Debt) in respect of the Junior Liabilities to which the Servicer Seller Subordinated Debt that otherwise would be entitled except for this clause (a) payable or deliverable with respect to the Seller Subordinated Debt directly or indirectly, by set-off or in any other manner to the Seller, shall be made paid or delivered by the Person making such payment or delivery (whether a trustee in bankruptcy, a receiver, custodian, liquidating trustee or otherwise) directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), Holders for application to (in the name case of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or as collateral for (ii), in the event that the Servicer receives any payment case of noncash property or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurersecurities) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, Obligations until the Senior Liabilities Obligations shall have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Receivables Sale Agreement (American Axle & Manufacturing Holdings Inc), Receivables Sale Agreement (American Axle & Manufacturing Inc)
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under Section 8.01(r) of the Receivables Financing Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersLenders), may in the name of the Servicer Holder or otherwise, may demand, xxx sxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will mxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 4.01(a) of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 8.01(t) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Lender, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Volt Information Sciences, Inc.), Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Subordination Provisions. The Sponsor Issuer covenants and agrees, and the ServicerHolder and any other holder of this Subordinated Note (collectively, the Holder and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 710:
(a) No payment or other distribution of the Issuer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) made only out of the funds it receives pursuant to Section 4.01 of the Note Purchase Agreement and no Event of Default or Unmatured Event of Default shall have occurred and be continuing or (ii) made pursuant to clause (a) or (b) of paragraph 7 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorIssuer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Issuer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Issuer other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash cash, including, without limitation, all interest, fees, charges, expenses and indemnities accruing after the commencement of any bankruptcy, insolvency or similar proceeding with respect to the Issuer, before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) if the Holder shall file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, it shall use commercially reasonable efforts to cause said claim or claims to be made directly to the Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and the Insurer)performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersPurchasers), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Issuer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Holder and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 4.01(a) of the Note Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Issuer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be made only out of the funds it receives pursuant to Section 4.01 of the Note Purchase Agreement and no Event of Default or Unmatured Event of Default shall have occurred and be continuing;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorIssuer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorIssuer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Issuer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorIssuer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorIssuer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.Issuer;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Mallinckrodt PLC), Purchase and Sale Agreement (Mallinckrodt PLC)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator and any other holder of this Company Note (collectively, the Originator and any such other holder are called the "Holder"), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under paragraph 1(n) of Exhibit IV of the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoingforegoing during any Bankruptcy Proceeding: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Issuer (or the Administrator acting on behalf of the NoteholdersIssuer's behalf), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d)(ii) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under paragraph 1(n) of Exhibit IV of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee Administrator and the Insurer Issuer in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Issuer, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Carpenter Technology Corp), Performance Guaranty (Ugi Corp /Pa/)
Subordination Provisions. The Sponsor Borrower covenants and agrees, and the ServicerIntercompany Lender and any other assignee, transferee or pledgee of this Loan Agreement or any Intercompany Loans (collectively, the Intercompany Lender and any such other assignee, transferee or pledgee are called the “Holder”), by its acceptance of any sale, assignment, transfer or pledge of this NoteLoan Agreement or any Intercompany Loans, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities is the principal amount of and interest on the Intercompany Loans and any other payments owing under this Loan Agreement are hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 710:
(a) No payment or other distribution of the Borrower’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Loan Agreement or any Intercompany Loan except to the extent such payment or other distribution is either (i) permitted under Section 8.01(r) of the Receivables Financing Agreement or (ii) made on or after the Final Payout Date;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBorrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Borrower or any sale of all or substantially all of the assets of the Sponsor except pursuant to Borrower other than as permitted by the Sale and Servicing Contribution Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Loan Agreement or any Intercompany Loan. In order to implement the foregoing, in the event of any Bankruptcy Proceedings relating to the Borrower: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Loan Agreement or any Intercompany Loan to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount owed under this Loan Agreement (and if the Holder does not promptly do so, the Administrative Agent may), and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersSecured Parties), may in the name of the Servicer Holder or otherwise, may demand, xxx sxx for, collect, receive and receipt for any and all such payments or distributions, and file, file and prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Loan Agreement or any Intercompany Loan, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Borrower or from any other source whatsoever, in respect of this Loan Agreement or any Intercompany Loan, other than as expressly permitted by the Junior Liabilitiesterms of this Loan Agreement, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) forthwith (in each case no later than two (2) Business Days after receipt thereof). The Holder will mxxx its books and records so as clearly to indicate that this Loan Agreement and the Insurer) forthwithIntercompany Loans are subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this NoteLoan Agreement or any Intercompany Loan, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon this Loan Agreement and the Junior LiabilitiesIntercompany Loans, and any balance thereof shall, solely as between the Servicer Borrower and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 4.01(a) of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by Interests or as otherwise required under Section 4.01(a) of the Indenture Trustee to be in accordance with the IndentureReceivables Financing Agreement; but as between the Sponsor Borrower and its creditorsthe Intercompany Lender, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Intercompany Loans;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Loan Agreement or any Intercompany Loan, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Loan Agreement or any Intercompany Loan) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 8.01(r) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) Loan Agreement is intended to or shall impair, as between the SponsorBorrower, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBorrower’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on the Intercompany Loans as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Borrower (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBorrower, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Loan Agreement or any rights in respect hereof or (ii) convert the Junior Liabilities this Loan Agreement or any Intercompany Loan into an equity interest in the SponsorBorrower, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Lender, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Borrower until at least one year and one day shall have passed since the Termination Final Payout Date.;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Sale and Contribution Agreement (EnLink Midstream Partners, LP), Sale and Contribution Agreement (EnLink Midstream, LLC)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator, by its acceptance of this Subordinated Note, likewise covenants and agrees, in each case, for the benefit of the other and for the benefit of the Senior Interest Holders, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests, and any payment hereunder is pari passu in right of payment and performance to all other Junior Liabilities, to the extent and in the manner set forth in the following clauses of this paragraph 7:Section IV (the “Subordination Provisions”):
(i) No payment or other distribution of Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note, except to the extent such payment or other distribution is (a) permitted under the Receivables Purchase Agreement and (b) made pursuant to Sections II or III of this Subordinated Note.
(ii) (a) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating that an Insolvency Event shall have occurred with respect to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedingsCompany, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (iib) on and after the occurrence of an Event of DefaultDefault (under and as defined in the Receivables Purchase Agreement), the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Originator would be entitled except for this clause (aii) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders), and the Insurer); and (y) the Servicer Originator hereby irrevocably agrees that Administrative Agent, acting at the Indenture Trustee (on behalf direction of the Noteholders)Required Purchasers, in the name of the Servicer Originator or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any proceeding related to such Bankruptcy Proceedings Insolvency Event with respect to any and all claims of the Servicer Originator relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall have been paid and performed in full and in cash.
(biii) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Originator receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall immediately be turned over in cash by the Servicer Originator to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) until the Senior Interests (other than unasserted contingent indemnification obligations) have been paid in full and the Insurer) forthwithin cash. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer any SCA Originator (including Originator hereunder) and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(civ) Upon the final payment in full and in cash of all Senior LiabilitiesInterests (other than unasserted contingent indemnification obligations), the Servicer Originator shall be subrogated to the rights of the Indenture Trustee Senior Interests Holders to receive payments or distributions from the Sponsor Company that are applicable to the Senior Liabilities until the Junior Liabilities are paid in fullInterests.
(dv) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerOriginator, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerOriginator, the SponsorCompany’s obligation, which is unconditional and absolute, to pay the Junior Liabilities this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Originator and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).
(evi) The Servicer Originator shall not, (a) until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note, or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unlessthereof, in the case of each of clauses (i) and (ii) abovecase, the Servicer shall have received without the prior written consent of the Indenture Trustee Administrative Agent and the Insurer Required Purchasers or (b) at any time convert this Subordinated Note into an equity interest in each caseCompany.
(fvii) The Servicer Originator shall not, except without the advance written consent of the Indenture Trustee and the Insurer not commence, or join with any other Person in commencing, any Bankruptcy Proceedings proceedings related to an Insolvency Event with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination DateSenior Interests (other than unasserted contingent indemnification obligations) shall have been paid in full and in cash.
(gviii) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings Insolvency Event or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hix) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice or demand to the ServicerOriginator, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (a) retain or obtain an interest in any property to secure securing any of the Senior LiabilitiesInterests pursuant to, and to the extent set forth in, the Transaction Documents; (iib) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iiic) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests in accordance with the Transaction Documents; (ivd) amend, supplement, amend and restate, supplement or otherwise modify any Transaction Document in accordance with the Sale and Servicing Agreement or any related documentterms thereof; and (ve) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ix) The Servicer Originator agrees that this Subordinated Note shall be pari passu with all other Junior Liabilities.
(xi) Originator hereby waives: waives (ia) notice of acceptance of these Subordination Provisions by any of the Noteholders and the InsurerSenior Interest Holders, (iib) notice of the existence, creation, non-payment or non-non- performance of all or any of the Senior Liabilities; Interests, and (iiic) all diligence in enforcement, collection or protection of, or realization upon, upon the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(jxii) These Subordination Provisions constitute a continuing offer from the Sponsor Company to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Omnibus Amendment (CHS Inc), Master Framework Agreement (CHS Inc)
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the NoteholdersPurchasers), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Celanese Corp), Purchase and Sale Agreement (LyondellBasell Industries N.V.)
Subordination Provisions. The Sponsor covenants and agreesSubject to Section 14(j) below, in the event of the commencement of any Insolvency or Liquidation Proceeding, then (i) all Obligations (as defined in the Loan Agreement) shall be paid in full in cash, and Lenders shall have no further obligation to fund under the ServicerLoan Agreement, by its acceptance prior to (x) any Distribution being made on account of any Subordinated Indebtedness and (y) Company making any payments under this Note, likewise covenants and agrees, that unless the payment of all Junior Liabilities is hereby expressly subordinated Required Lenders shall have waived in right of payment to writing the payment and performance of the Senior Liabilities to the extent and in the manner set forth in the following clauses benefits of this paragraph 7:
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), section and (ii) all Obligations (as defined in the Note Purchase Agreement) shall be paid in full in cash, prior to (x) any Distribution being made on account of any Subordinated Indebtedness and after (y) Company making any payments under this Note, unless the occurrence Required Note-Holders (as defined in the Note Purchase Agreement) shall have waived in writing the benefits of an Event this section. Subject to Section 14(j) below, in addition, if (i) any Obligations (as defined in the Loan Agreement) shall remain outstanding or Lenders shall have a further obligation to fund under the Loan Agreement, prior to (x) any Distribution being made on account of Defaultany Subordinated Indebtedness and (y) Company making any payments under this Note, the Senior Liabilities Required Lenders shall first have consented to any such Distribution or payment and (ii) any Obligations (as defined in the Note Purchase Agreement) shall remain outstanding, prior to (x) any Distribution being made on account of any Subordinated Indebtedness and (y) Company making any payments under this Note, the Required Note-Holders (as defined in the Note Purchase Agreement) shall have consented to any such Distribution or payment. Subject to Section 14(j) below, any such Distribution which would, but for the provisions hereof, be paid and performed in full and in cash before the Servicer shall be entitled to receive and to retain any payment payable or distribution deliverable in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) Subordinated Indebtedness, shall be made paid or delivered directly to the Indenture Trustee (Agent and Administrative Agent, respectively, for the benefit of the Noteholders, Lenders and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), Purchasers pro rata in the name of proportions in which the Servicer or otherwise, may demand, xxx for, collect, receive Lenders and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until Purchasers hold the Senior Liabilities Indebtedness, until amounts owing upon Senior Indebtedness shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer Lenders shall have received no further obligation to make advances under the prior written consent of the Indenture Trustee and the Insurer in each caseLoan Agreement.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Note Purchase Agreement (Cambium-Voyager Holdings, Inc.), Limited Waiver and Amendment (Cambium-Voyager Holdings, Inc.)
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerHolder, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7paragraph:
(ia) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of DefaultProceeding, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Holder would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of itself and the NoteholdersInvestor Certificateholders), and (ii) if a Bankruptcy Proceeding has been commenced, the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Holder shall promptly file a claim or claims, in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent form required in any such Bankruptcy Proceedings with respect to any and all claims Proceedings, for the full outstanding amount of the Servicer relating to the Junior Liabilities, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in each case respect thereof to be made directly to the Trustee (for the benefit of itself and the Investor Certificateholders) until the Senior Liabilities Interests shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect payment of the Junior Liabilities, after the commencement of any Bankruptcy Proceeding, such payment or other distribution shall be received in trust for the Indenture Trustee and the Investor Certificateholders and shall be turned over by the Servicer Holder to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the date that is a year and a day after the final payment in full and in cash of all Senior LiabilitiesInterests, the Servicer Holder shall be subrogated to the rights of the Indenture Trustee and the Investor Certificateholders to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities Interests until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Investor Certificateholders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders Trustee and the InsurerInvestor Certificateholders) and the ServicerHolder, the Sponsor’s Buyer's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders Trustee and the InsurerInvestor Certificateholders).
(e) The Servicer Except as otherwise permitted in Section 10.4 of the Agreement, the Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of Buyer (other than to the SponsorSenior Interests), howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (other than the Senior Liabilities)due, the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorBuyer, unless, in the case of each of clauses (i) and (ii) above), the Servicer Holder shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer Trustee, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since after the Termination DateSenior Interests shall have been finally paid and performed in full and in cash; provided, however, that the Holder shall at all times have the right to file any claim in or otherwise take any action with respect to any insolvency proceeding instituted against Buyer by any Person other than the Holder or any other Related Person (provided that no such action may be taken by the Holder until such proceeding has continued undismissed, unstayed and in effect for a period of 10 days).
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Certificateholder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Each of the Trustee (on behalf of Noteholders and the Insurer) Investor Certificateholders may, from time to time, with the consent of the Insurer in its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior Liabilities; Interests, (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; Interests, (iii) extend or renew for one or more periods (whether or not longer than the original period), alter alter, increase or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; Interests, (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; Transaction Document to which it is a party, and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by the Trustee or any of the Noteholders and the InsurerInvestor Certificateholders, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; Interests, and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor Buyer to all Persons who become the holders of, or who continue to hold, Senior Liabilities; Interests, and these Subordination Provisions are made for the benefit of the Noteholders Trustee and the InsurerInvestor Certificateholders, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (International Comfort Products Corp), Receivables Purchase Agreement (International Comfort Products Corp)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator and any other holder of this Company Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Company Note, likewise covenants and agrees, that the agrees that:
(a) No payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance or other distribution of the Senior Liabilities Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent and in such payment or other distribution is permitted under Section 1(n) of Exhibit IV to the manner set forth in the following clauses of this paragraph 7:Receivables Purchase Agreement;
(ib) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of DefaultBankruptcy Proceedings, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.Company Note;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall promptly be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders);
(d) forthwith. All Notwithstanding any payments and or distributions received by the Indenture Trustee Senior Interest Holders in respect of this Company Note, prior to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit occurrence of the Noteholders and Final Termination Date, the Insurer) first Holder shall not be subrogated to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment then existing rights of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions Interest Holders in respect of the Senior Liabilities.
(c) Upon Interests until the final payment Senior Interests have been paid and performed in full and in cash cash. Upon the occurrence of all Senior Liabilitiesthe Final Termination Date, the Servicer shall Holder will be subrogated to the then existing rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.Interest Holders, if any;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.collect this Company Note;
(g) [Reserved];
(h) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions or otherwise affecting these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify any Transaction Document (on the Sale and Servicing Agreement or any related documentterms set forth in such Transaction Document); and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(1) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Vistra Energy Corp.), Purchase and Sale Agreement (Vistra Energy Corp.)
Subordination Provisions. The Sponsor covenants Obligations of the ------------------------ Borrower and agreesof Holdings shall cease to constitute senior indebtedness under the subordination provisions of the Stock Repurchase Notes or the Subordinated Note Indenture or such subordination provisions shall be invalidated or otherwise cease to be legal, valid and binding obligations of the parties thereto, enforceable in accordance with their terms; then, and the Servicer, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities to the extent and in the manner set forth in the following clauses of this paragraph 7:
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to event, and at any and all claims time thereafter, if any Event of Default shall then be continuing, the Agent shall, upon the written request of the Servicer relating to the Junior LiabilitiesRequired Lenders, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination ProvisionsBorrower, take any or all of the following actions: retain or obtain an interest in any property , without prejudice to secure any the rights of the Senior LiabilitiesAgent or any Lender to enforce its claims against the Borrower, except as otherwise specifically provided for in this Agreement (provided that, if an Event of Default -------- specified in Section 9.5 shall occur with respect to the Borrower, the result which would occur upon the giving of written notice by the Agent as specified in clauses (i) and (ii) below shall occur automatically without the giving of any such notice): (i) declare the Total Commitment terminated, whereupon the Commitment of each Lender shall forthwith terminate immediately and any Commitment Fee shall forthwith become due and payable without any other notice of any kind; (ii) retain declare the principal of and any accrued interest in respect of all Loans and all obligations owing hereunder (including Unpaid Drawings) and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or obtain the primary or secondary obligations other notice of any other obligor or obligors with respect to any kind, all of which are hereby waived by Holdings and the Senior LiabilitiesBorrower; (iii) extend enforce, as Collateral Agent (or renew for one or more periods (whether or not longer than direct the original periodCollateral Agent to enforce), alter any or exchange any all of the Senior Liabilities, or release or compromise any obligation of any nature with respect Liens and security interests created pursuant to any of the Senior LiabilitiesSecurity Documents; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or terminate any related documentLetter of Credit which may be terminated in accordance with its terms; and (v) release its security interest in direct the Borrower to pay (and the Borrower hereby agrees upon receipt of such notice, or surrender, release or permit any substitution or exchange for all or any part upon the occurrence of any rights or property securing any Event of Default specified in Section 9.5 in respect of the Senior LiabilitiesBorrower, or extend or renew it will pay) to the Collateral Agent at the Payment Office such additional amounts of cash, to be held as security for one or more periods (whether or not longer than the original period) or releaseBorrower's reimbursement obligations in respect of Letters of Credit then outstanding equal to the aggregate Stated Amount of all Letters of Credit then outstanding. Except as expressly provided in this Section and in the Security Documents, compromisepresentment, alter or exchange any obligations demand, protest and all other notices of any nature of any obligor kind are hereby expressly waived with respect to any such rights or propertythe exercise of remedies upon an Event of Default.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Credit Agreement (Graphic Controls Corp), Credit Agreement (Graphic Controls Corp)
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer“Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the NoteholdersPurchasers), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unlessunless Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Fleetcor Technologies Inc), Purchase and Sale Agreement (Fleetcor Technologies Inc)
Subordination Provisions. The Sponsor Purchaser covenants and agrees, and the ServicerSeller, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities to the extent and in the manner set forth in the following clauses of this paragraph 7:
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorPurchaser, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Purchaser or any sale of all or substantially all of the assets of the Sponsor Purchaser except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”"BANKRUPTCY PROCEEDINGS"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer Seller shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Seller would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.and
Appears in 2 contracts
Samples: Mortgage Loan Purchase Agreement (Greenpoint Mortgage Securities Inc/), Mortgage Loan Purchase Agreement (Greenpoint Mortgage Securities Inc/)
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer“Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the NoteholdersPurchasers), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unlessunless Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer each Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.. 9205569 09039541 Exhibit B-5
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and each Originator and any other holder of this Note (collectively, the Servicer“Holder” and any thereof, a “Holder”), by its acceptance of this NoteNote (or a beneficial interest herein), likewise covenants and agreesagrees on behalf of itself and any Holder, in each case, for the benefit of the other and for the benefit of the Senior Interest Holders, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7:Section 7 (the “Subordination Provisions”):
(a) No payment or other distribution of Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is (i) permitted under the Receivables Purchase Agreement or (ii) made pursuant to Sections 4 or 6 of this Note.
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit Event of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”)involving Buyer, and (ii) on and after the occurrence of an Event of Defaultthe Purchase and Sale Termination Date, the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall first be paid and performed in full and in cash before the Servicer any Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Note. In order to implement the foregoing: (xA) all payments and distributions of any kind or character in respect of the Junior Liabilities this Note to which the Servicer a Holder would be entitled except for this clause (asubsection 7(b) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (yB) the Servicer each Holder hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Administrative Agent, in the name of the Servicer any Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any proceeding related to such Event of Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Note, in each case until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall have been paid and performed in full and in cash.
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer any Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Note, other than as expressly permitted by the Junior Liabilitiesterms of this Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall immediately be turned over in cash by the Servicer such Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) until the Senior Interests (other than unasserted contingent indemnification obligations) have been paid in full and the Insurer) forthwithin cash. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer Originators on the one hand and the Noteholders and Senior Interest Holders on the Insurerother hand, be applied by the Indenture Trustee Administrative Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesReceivables Purchase Agreement.
(cd) Upon the final payment in full and in cash of all Senior LiabilitiesInterests (other than unasserted contingent indemnification obligations), the Servicer Holder shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities Interests until the Junior Liabilities are this Note is paid in fullfull and in cash.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities this Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Purchase and Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).
(ef) The Servicer Each Holder shall not, until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) have been finally paid and performed in full and in cash, : (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Note, or any rights in respect hereof thereof or (ii) convert the Junior Liabilities this Note into an equity interest in the SponsorBuyer, unless, in the case of each of clauses (i) and (ii) above, the Servicer Holder shall have received the prior written consent of the Indenture Trustee and the Insurer in each caseAdministrative Agent.
(fg) The Servicer Each Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer not commence, or join with any other Person in commencing, any proceedings related to an Event of Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination DateSenior Interests (other than unasserted contingent indemnification obligations) shall have been paid in full and in cash.
(gh) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Event of Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice or demand to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure securing any of the Senior LiabilitiesInterests pursuant to, and to the extent set forth in, the Transaction Documents; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests in accordance with the Transaction Documents; (iv) amend, supplement, amend and restate, or otherwise modify any Transaction Document in accordance with the Sale and Servicing Agreement or any related documentterms thereof; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, upon the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(jk) These Subordination Provisions constitute a continuing offer from the Sponsor Buyer to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and the Servicer, Holder by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Subordinated Note, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Indebtedness (as defined below) to the extent and in the manner set forth in the following clauses of this paragraph 7Section 2:
(ia) No payment or other distribution of the Company's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is permitted under the Senior Indebtedness Documents (as defined below).
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement Company (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Indebtedness shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoingforegoing during any Bankruptcy Proceeding: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Representative; (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Representative (for the benefit of the Noteholders, holders of the Senior Indebtedness) until the Senior Indebtedness shall have been paid and the Insurer)performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Representative, in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Indebtedness shall have been paid and performed in full and in cash.
(bc) Following During the occurrence continuance of any event of the events described in clause default (a)(ior an event which with notice or lapse of time or both would constitute an event of default) under any Senior Indebtedness Document, no payment of principal, premium or interest shall be made on this Subordinated Note.
(ii), in d) In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee holders of the Senior Indebtedness and shall be turned over by the Servicer Holder to the Indenture Trustee (for Representative forthwith. Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the benefit of the Noteholders, and the Insurer) forthwithterms hereof. All payments and distributions received by the Indenture Trustee Representative in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) Representative first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Representative in enforcing these Subordination Provisionsthe subordination provisions set forth in this Section 2, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Holder and the Noteholders and the InsurerRepresentative, be applied by the Indenture Trustee Representative toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureIndebtedness; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesIndebtedness.
(ce) Upon Notwithstanding any payments or distributions received by the final payment Representative in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the holders of the Senior Indebtedness until the Senior Indebtedness have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated a payment or distribution to the rights Representative in respect of this Subordinated Note) to the extent that any payment arising out of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to exercise of such rights would be permitted under the Senior Liabilities until the Junior Liabilities are paid in fullIndebtedness Documents.
(df) These Subordination Provisions The provisions of this Section 2 are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf holders of Noteholders and the Insurer), Senior Indebtedness on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and holders of the InsurerSenior Indebtedness) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and holders of the InsurerSenior Indebtedness).
(eg) The Servicer Holder shall not, until the Senior Liabilities have Indebtedness has been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Indebtedness, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsorhereof, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee and the Insurer in each caseRepresentative.
(fh) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer Representative, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination DateSenior Indebtedness shall have been paid and performed in full and in cash.
(gi) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Indebtedness is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or holders of the Insurer Senior Indebtedness (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hj) The Indenture Trustee (on behalf Representative and/or any of Noteholders and the Insurer) holders of the Senior Indebtedness may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisionsthis Section 2, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesIndebtedness; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesIndebtedness; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesIndebtedness, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesIndebtedness; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentSenior Indebtedness Documents; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesIndebtedness, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ik) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any the Representative and the holders of the Noteholders and the Insurer, Senior Indebtedness; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesIndebtedness; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesIndebtedness, or any thereof, or any security therefor.
(jl) These The holders of the Senior Indebtedness may, from time to time, on the terms and subject to the conditions set forth in the Senior Indebtedness Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Indebtedness, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Indebtedness shall be and remain Senior Indebtedness for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Indebtedness or of any interest of such assignee or transferee in the Senior Indebtedness shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor.
(m) The subordination provisions contained in this Section 2 constitute a continuing offer from the Sponsor holder of this Subordinated Note to all Persons persons who become the holders of, or who continue to hold, Senior LiabilitiesIndebtedness; and these Subordination Provisions subordination provisions are made for the benefit of the Noteholders and holders of the InsurerSenior Indebtedness, and the Indenture Trustee Representative may proceed to enforce such provisions on behalf of each of such Personspersons.
(n) For purposes of this Section 2, the following terms shall have the following meanings:
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer“Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities 740816958 17540157 Exhibit B-3 Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the NoteholdersPurchasers), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unlessunless Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer each Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Initial Purchaser covenants and agrees, and the ServicerOriginator, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph Section 7:
(a) No payment or other distribution of the Initial Purchaser's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is (i) permitted under the Receivables Purchase Agreement or (ii) made pursuant to Sections 4 or 6 of this Note;
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Event of Bankruptcy involving the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”)Initial Purchaser, and (ii) on and after the occurrence of an Event of Defaultthe Sale Termination Date, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Originator would be entitled except for this clause (asubsection 7(b) shall be made directly to the Indenture Trustee Senior Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (y) the Servicer Originator hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Senior Agent, in the name of the Servicer Originator or otherwise, may demand, xxx sxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings proceeding with respect to any and all claims of the Servicer Originator relating to the Junior Liabilities, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Originator receives any payment or other distribution of any kind or character from the Sponsor Initial Purchaser or from any other source whatsoever, in respect of the Junior Liabilities, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Originator to the Indenture Trustee Senior Agent (for the benefit of the Noteholders, and Senior Interest Holders) forthwith until the Insurer) forthwithSenior Interests have been paid in full. All payments and distributions received by the Indenture Trustee Senior Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Senior Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including including, without limitation, reasonable attorneys’ ' fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Senior Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Senior Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Senior Agent to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor Initial Purchaser and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(cd) Upon the final payment in full and in cash of all Senior LiabilitiesInterests, the Servicer Originator shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor Initial Purchaser that are applicable to the Senior Liabilities Interests until the Junior Liabilities are paid in full.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerOriginator, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these the Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorInitial Purchaser, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerOriginator, the Sponsor’s Initial Purchaser's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Purchase and Sale and Servicing Agreement or to affect the relative rights of the Servicer Originator and creditors of the Sponsor Initial Purchaser (other than the Noteholders and the InsurerSenior Interest Holders).
(ef) The Servicer Originator shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorInitial Purchaser, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities Liabilities, or any rights in respect hereof thereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorInitial Purchaser, unless, in the case of each of clauses (i) and (ii) above, the Servicer Originator shall have received the prior written consent of the Indenture Trustee and the Insurer Administrator in each case.
(fg) The Servicer Originator shall not, except without the advance written consent of the Indenture Trustee and the Insurer Administrator, commence, or join with any other Person in commencing, any proceedings related to an Event of Bankruptcy Proceedings with respect to the Sponsor Initial Purchaser until at least one year and one day shall have passed since the Termination DateSenior Interests shall have been finally paid and performed in full and in cash.
(gh) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Event of Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerOriginator, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ij) The Servicer Originator hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, upon the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(jk) These Subordination Provisions constitute a continuing offer from the Sponsor Initial Purchaser to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerHolder, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7paragraph:
(ia) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of DefaultProceeding, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Holder would be entitled except for this clause (a) shall be made directly to the Indenture Trustee Agent (for the benefit of itself and the NoteholdersPurchasers), and (ii) if a Bankruptcy Proceeding has been commenced, the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Holder shall promptly file a claim or claims, in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent form required in any such Bankruptcy Proceedings with respect to any and all claims Proceeding, for the full outstanding amount of the Servicer relating to the Junior Liabilities, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in each case respect thereof to be made directly to the Agent (for the benefit of itself and the Purchasers) until the Senior Liabilities Interests shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect payment of the Junior Liabilities, after the commencement of any Bankruptcy Proceeding, such payment or other distribution shall be received in trust for the Indenture Trustee Agent and the Purchasers and shall be turned over by the Servicer Holder to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) Agent forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final indefeasible payment in full and in cash of all Senior LiabilitiesInterests, the Servicer Holder shall be subrogated to the rights of the Indenture Trustee Agent and the Purchasers to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities Interests until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders Agent and the Insurer), Purchasers on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders Agent and the InsurerPurchasers) and the ServicerHolder, the Sponsor’s Buyer's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders Agent and the InsurerPurchasers).
(e) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of Buyer (other than to the SponsorSenior Interests), howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (other than the Senior Liabilities)due, the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorBuyer, unless, in the case of each of clauses (i) and (ii) above), the Servicer Holder shall have received the prior written consent of the Indenture Trustee and the Insurer Agent in each case.
(f) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer not commence, or join with any other Person in commencing, any proceeding of the type referred to in the definition of Bankruptcy Proceedings Event with respect to the Sponsor Buyer until at least one year and one day shall have passed since after the Termination DateSenior Interests shall have been finally paid and performed in full and in cash; provided, however, that the Holder shall at all times have the right to file any claim in or otherwise take any action with respect to any insolvency proceeding instituted against Buyer by any Person other than the Holder (provided that no such action may be taken by the Holder until such proceeding has continued undismissed, unstayed and in effect for a period of 10 days).
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Receivable is rescinded or must be restored or returned by the Indenture Trustee Agent or Noteholders or the Insurer a Purchaser (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf Each of Noteholders the Agent and the Insurer) Purchasers may, from time to time, with the consent of the Insurer in its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior Liabilities; Interests, (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; Interests, (iii) extend or renew for one or more periods (whether or not longer than the original period), alter alter, increase or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; Interests, (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; Transaction Document to which it is a party, and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by the Agent or any of the Noteholders and the InsurerPurchasers, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; Interests, and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor Buyer to all Persons who become the holders of, or who continue to hold, Senior Liabilities; Interests, and these Subordination Provisions are made for the benefit of the Noteholders Agent and the InsurerPurchasers, and the Indenture Trustee Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Crompton & Knowles Corp)
Subordination Provisions. The Sponsor AFC covenants and agrees, and the ServicerOriginator and any other holder of this Term Note (collectively, the Originator and any such other holder are called the "Holder"), by its acceptance of this Term Note, likewise covenants and agreesagrees on behalf of itself and any other holder of this Term Note, that the payment of all Junior Liabilities the principal amount of and interest on this Term Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7as follows:
(a) no payment or other distribution of AFC's assets of any kind or character, whether in cash, securities or other rights or property, shall be made on account of this Term Note except to the extent such payment or other distribution is: (i) In permitted under Section 7.03(f) of the Receivables Purchase Agreement or (ii) made pursuant to paragraph 6(a) or (b) of this Term Note,
(b) in the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorAFC, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor AFC or any sale of all or substantially all of the assets of AFC other than as permitted by the Sponsor except pursuant to the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Term Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Term Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Agent (for the benefit of the NoteholdersSenior Interest Holders), (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Term Note, and shall use commercially reasonable efforts to cause said claim(s) to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer); Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash, and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Purchaser (or the Agent acting on behalf of the NoteholdersPurchaser's behalf), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Term Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.,
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and Originator and any other holder of this Subordinated Note (collectively, Originator and any such other holder are called the Servicer“Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Subordinated Note, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the NoteholdersPurchasers), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.; 701741768 12403015 Exhibit B
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash; 701741768 12403015 Exhibit B
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Subordinated Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerTransferor and any other holder of this Company Note (collectively, the Transferor and any such other holder are called the “Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Sale and Servicing Contribution Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Transferor shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the NoteholdersSecured Parties), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Transferor and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unlessunless Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Secured Parties, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor covenants and agrees, and the Servicer, by its acceptance of this Note, likewise covenants and agrees, Section 6.1 (a) Subordinate to Senior Obligations. Secured Party agrees that the payment of all Junior Liabilities is hereby Subordinated Obligations are expressly subordinated subordinate and junior in right of payment to the payment all Senior Obligations. "Subordinate and performance junior in right of the Senior Liabilities to the extent and in the manner set forth in the following clauses of this paragraph 7payment" shall mean that:
(i) No part of the Subordinated Obligations shall have any claim to the assets of the Debtor on a parity with or prior to the claim of the Senior Obligations. Unless and until the Senior Obligations shall have been fully paid and satisfied, Secured Party will not, without the express prior written consent of the Senior Lenders, take, demand or receive, and the Debtor will not make, give or permit, directly or indirectly, by set- off, redemption, purchase or in any other manner, any payment or security for the whole or any part of the Subordinated Obligations, provided, that, so long as a Default or Event of Default shall not have occurred and then be continuing and would not occur as a result of, or after giving effect to, such payment, the Debtor may make, and Secured Party may receive, the scheduled payment of principal and accrued interest on the Maturity Date or upon the earlier completion of the public offering in accordance with the terms of the Subordinated Note;
(A) In the event of any dissolutiondistribution, winding up, liquidation, readjustment, reorganization division or other similar event relating to the Sponsor, whether voluntary or involuntaryapplication, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any substantial part of the property, assets or business of the Debtor or the proceeds thereof, to any creditor or creditors of the Debtor or (B) upon any indebtedness of the Debtor becoming due and whether in bankruptcypayable by reason of any liquidation, dissolution or other winding- up of the Debtor or its business or by reason of any sale, receivership, insolvency, receivership reorganization or other similar bankruptcy proceedings, or upon an assignment for the benefit of creditors, arrangement or any other marshalling of proceeding by or against the assets and liabilities of the Sponsor Debtor for any relief under any bankruptcy, reorganization or insolvency law or laws, Federal or state, or any sale of all law, Federal or substantially all of the assets of the Sponsor except pursuant state, relating to the Sale relief of debtors, readjustment of indebtedness, reorganization, composition, or extension, or (C) in the event that any Subordinated Obligation is declared due and Servicing Agreement payable prior to its stated maturity (such proceedings being herein collectively called “Bankruptcy Proceedings”under circumstances when the preceding clause (A) or (B) shall not be applicable), and or (iiD) on and after in the occurrence of an Event of Default, event that any amounts owing under the Senior Liabilities shall first be Obligations have become, or have been declared to be, due and payable (and have not been paid and performed in full accordance with their terms), then and in cash before the Servicer shall be entitled to receive and to retain any such event, any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character character, whether in respect of cash, property or securities which, but for the Junior Liabilities to which the Servicer subordination provisions contained herein, would otherwise be entitled except for this clause (a) shall be made directly payable or deliverable to the Indenture Trustee (Subordinated Obligations, shall instead be paid over or delivered to the Senior Lenders, for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.Senior
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer"Holder"), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company's assets of any kind or Character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(m) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization Reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Collateral Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Collateral Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Collateral Agent (acting on the behalf of the NoteholdersPurchasers), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Collateral Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Collateral Agent in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Collateral Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Collateral Agent (in the order of application set forth in Section 1.4 of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilities, at which time the Servicer Holder shall be subrogated to and entitled to assert the then existing rights of the Indenture Trustee Senior Interest Holders in respect of the Senior Interests. Prior to receive payments the time when the Senior Interest Holders have been paid in full and in cash if no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are extent that any payment arising out of the exercise of such rights would be permitted under Section 1(m) of Exhibit IV to the Receivables Purchase Agreement. From and after the time when the Senior Interest Holders shall have been paid in full.full and in cash in respect of all Senior Interests, the Holder shall be subrogated to and entitled to assert the then existing rights of the Senior Interest Holders in respect of the Senior Interest;
(de) These Subordination Provisions are intended solely for the purpose of defining Defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee and the Insurer Collateral Agent in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer commenceCollateral Agent, Commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded Rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Collateral Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. (a) The Sponsor covenants and agrees, and aggregate principal amount owing to the Servicer, by its acceptance of Subordinated Creditor from time to time under this Note, likewise covenants all accrued and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities to the extent and in the manner set forth in the following clauses of this paragraph 7:
unpaid interest thereon (i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”if any), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments other Indebtedness evidenced by or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee otherwise owing in respect of this Note, to the extent received whether now or hereafter existing, including, without limitation, all such Indebtedness under, or in or converted into cashrespect of, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees extensions, modifications, substitutions, amendments, amendments and legal expenses) paid restatements, renewals, refinancings and refundings of any or incurred by all of the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesforegoing Indebtedness, and any balance thereof shallinstrument or agreement evidencing, solely as between governing or otherwise setting forth the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions terms of any kind such Indebtedness or character shall be deemed to be payments other Indebtedness incurred in any such extension, modification, substitution, amendment, amendment and restatement, renewal, refinancing or distributions refunding, in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, each case whether direct or indirect, absolute or contingent, and whether for principal, interest (including, without limitation, interest accruing after the filing of a petition initiating any Insolvency Proceeding (as hereinafter defined), whether or not such interest accrues after the filing of such petition for purposes of any applicable Insolvency Laws (as hereinafter defined), or is an allowed claim in such Insolvency Proceeding), premiums, fees, indemnification obligations, contract causes of action, costs, expenses or otherwise (all such Indebtedness being, collectively, the “Subordinated Debt”) is and shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to the prior payment in full of all Indebtedness, whether now or thereafter hereafter existing, including, without limitation, all Lender Indebtedness, under or due or to become due in respect of: (other than i) the Senior Liabilities)Credit Agreement, the Junior Liabilities Notes, the Security Instruments, the other Loan Documents and the Hedging Agreements entered into by Payor or any rights in respect hereof of its Subsidiaries with any Lender or Secured Affiliate (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i“Secured Hedging Agreements”) and (ii) aboveany and all extensions, the Servicer shall have received the prior written consent modifications, substitutions, amendments, amendments and restatements, renewals and refundings of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain foregoing Indebtedness, and any instrument or obtain an interest agreement evidencing, governing or otherwise setting forth the terms of any such Indebtedness or other Indebtedness incurred in any property such extension, modification, substitution, amendment, amendment and restatement, renewal or refunding, in each case whether direct or indirect, absolute or contingent, and whether for principal, interest (including, without limitation, interest accruing after the filing of a petition initiating any Insolvency Proceeding, whether or not such interest accrues after the filing of such petition for purposes of any applicable Insolvency Laws, or is an allowed claim in such Insolvency Proceeding), premiums, fees, indemnification obligations (exclusive of indemnification obligations not then owing which survive the termination or expiration of the Credit Agreement or the other Loan Documents, to secure any the extent demand therefor has not been made or threatened as of the date of such termination or expiration), contract causes of action, costs and expenses pursuant to the Loan Documents (all such Indebtedness being, collectively, the “Senior Debt”). For all purposes of this Note, the Senior Debt shall not be deemed to have been paid in full (“paid in full” or “payment in full”) until (A) such Senior Debt (exclusive of indemnification obligations not then owing which survive the termination or expiration of the Credit Agreement or the other Loan Documents, to the extent demand therefor has not been made or threatened as of the date of such termination or expiration, and Cash Collateralized L/C Obligations) has been indefeasibly paid in full in cash, (B) the termination of all of the Commitments, and (C) there are no Letters of Credit (exclusive of Letters of Credit which have been Cash Collateralized) issued under the Loan Documents.
(b) Until all of the Senior Liabilities; Debt shall have been paid in full, subject to the proviso to this sentence and the last sentence of this Section 7(b), no payment or distribution of any property or assets of Payor of any kind or character (ii) retain including, without limitation, any payment that may be payable in respect of, or obtain turnover of funds to be applied to, the primary or secondary obligations Subordinated Debt by reason of any other obligor Indebtedness or obligors with respect obligations of Payor being subordinated to any payment of the Senior Liabilities; Subordinated Debt) shall be made by or on behalf of Payor for or on account of any Subordinated Debt or any purchase, redemption or other acquisition thereof (iii) extend including, without limitation, by way of set-off, counterclaim or renew for one or more periods (whether or not longer than the original periodotherwise), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the InsurerSubordinated Creditor shall not ask, demand, sxx for, take or receive from Payor, directly or indirectly, in cash or other property or by set-off or in any other manner (ii) notice including, without limitation, from or by way of the existencecollateral), creation, non-payment or non-performance of all or any of the Senior LiabilitiesSubordinated Debt; provided, however, that notwithstanding the foregoing or anything to the contrary contained herein or in the Loan Documents, if no Blockage Event then exists or would result therefrom, Payor (i) may and shall make any and all regularly scheduled payments in respect of the Subordinated Debt, including any missed payments (and default interest thereon at the then applicable rate provided herein) that it was prohibited from making to the Subordinated Creditor during the existence of any Blockage Event, to the Subordinated Creditor with no further notice, consent or action by the Administrative Agent, the Lenders or the Secured Affiliates, and (iiiii) all diligence may make, at any time and from time to time in enforcementwhole or in part, collection any prepayments of this Note to the Subordinated Creditor with no further notice, consent or protection of, or realization uponaction by the Administrative Agent, the Senior Liabilities, Lenders or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders Secured Affiliates. Payor and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.Subordinated Creditor (by its acceptance
Appears in 1 contract
Subordination Provisions. The Sponsor Purchaser covenants and agrees, and the ServicerSeller, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities to the extent and in the manner set forth in the following clauses of this paragraph 7:
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorPurchaser, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Purchaser or any sale of all or substantially all of the assets of the Sponsor Purchaser except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer Seller shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Seller would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer Seller hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer Seller or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Seller relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer Seller receives any payment or other distribution of any kind or character from the Sponsor Purchaser or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer Seller to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the InsurerNoteholders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, Trustee or the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer Seller and the Noteholders and the InsurerNoteholders, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor Purchaser and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer Seller shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor Purchaser that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Headlands Mortgage Securities Inc)
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer“Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7:
9: (a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note; (b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain Holder shall promptly file a claim or obtain claims, in the primary or secondary obligations of form required in any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period)Bankruptcy Proceedings, alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit full outstanding amount of the Noteholders and the Insurerthis Company Note, and the Indenture Trustee may proceed shall use commercially reasonable efforts to enforce such provisions on behalf of each of such Persons.cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerSellers, by its their acceptance of this Seller Note, likewise covenants covenant and agreesagree, that the payment of all Junior Liabilities is obligations of the Company to the Sellers under this Seller Note from or with the proceeds (other than proceeds allocable to, or paid or payable in respect of, the Exchangeable Company Interest in compliance with Section 2.08(n) of the Pooling Agreement) (such proceeds being the "Proceeds") of Receivables or Related Property (and any extensions, renewals, financing, refundings and replacements of all or any part of such obligations) (collectively, the "Seller Subordinated Debt") are hereby expressly subordinated in right of payment to the payment and performance of the obligations of the Company to the Trustee for the benefit of the Holders, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due (collectively the "Senior Liabilities Obligations") to the extent and in the manner set forth in this paragraph, including each of the following clauses of this paragraph 7subparts:
(ia) Insolvency Events; Priority of Senior Obligations; Payments Made Directly to the Trustee. In the event of any bankruptcy, dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling marshaling of the assets and liabilities of the Sponsor Company (each an "Insolvency Event") or any sale of all or substantially all of the assets of the Sponsor Company (except pursuant to the Sale Pooling Agreement and Servicing Agreement any Supplement thereto):
(such proceedings being herein collectively called “Bankruptcy Proceedings”), and (iii) on and after the occurrence of an Event of Default, the Senior Liabilities Obligations shall first be paid and performed in full and in cash before the Servicer Sellers shall be entitled to receive and to retain any payment or distribution from or with the Proceeds in respect of the Junior Liabilities. In order to implement Seller Subordinated Debt, whether of principal, interest or otherwise; and
(ii) any payment or distribution from or with the foregoing: (x) all payments and distributions Proceeds of any kind (including cash or character property arising from Proceeds which may be payable or deliverable by reason of the payment of any other Indebtedness of the Company being subordinated to the payment of the Seller Subordinated Debt) in respect of the Junior Liabilities to which the Servicer Seller Subordinated Debt that otherwise would be entitled except for this clause (a) payable or deliverable with respect to the Seller Subordinated Debt directly or indirectly, by setoff or in any other manner to the Sellers, shall be made paid or delivered by the Person making such payment or delivery (whether a trustee in bankruptcy, a receiver, custodian, liquidating trustee or otherwise) directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), Holders for application to (in the name case of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or as collateral for (ii), in the event that the Servicer receives any payment case of non-cash property or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurersecurities) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, Obligations until the Senior Liabilities Obligations shall have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerCompany, by its acceptance of this Note, likewise covenants and agrees, in each case, for the benefit of the other and for the benefit of the Senior Interest Holders, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests, and any payment hereunder is pari passu in right of payment and performance to all other Junior Liabilities, to the extent and in the manner set forth in the following clauses of this paragraph 7:Section 7 (the “Subordination Provisions”):
(a) No payment or other distribution of Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is made pursuant to Sections 4 or 6 of this Note;
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit Event of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”)involving Buyer, and (ii) on and after the occurrence of an Event of Defaultthe Purchase Termination Date, the Senior Liabilities Interests shall first be indefeasibly paid and performed in full and in cash before the Servicer Company shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Note. In order to implement the foregoing: (xA) all payments and distributions of any kind or character in respect of the Junior Liabilities this Note to which the Servicer Company would be entitled except for this clause (asubsection 7(b) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (yB) the Servicer Company hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Administrative Agent, in the name of the Servicer Company or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings proceeding with respect to any and all claims of the Servicer Company relating to the Junior Liabilitiesthis Note, in each case until the Senior Liabilities Interests shall have been indefeasibly paid and performed in full and in cash.
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Company receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Note, other than as expressly permitted by the Junior Liabilitiesterms of this Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall immediately be turned over in cash by the Servicer Company to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) until the Senior Interests have been indefeasibly paid and the Insurer) forthwithperformed in full and in cash. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer any Originator (including Company hereunder) and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(cd) Upon the final indefeasible payment in full and in cash of all Senior LiabilitiesInterests, the Servicer Company shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities Interests until the Junior Liabilities are this Note is indefeasibly paid and performed in fullfull in cash.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerCompany, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these the Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerCompany, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities this Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Receivables Sale and Servicing Agreement or to affect the relative rights of the Servicer Company and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due Buyer (other than the Senior LiabilitiesInterest Holders), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Receivables Sale Agreement (C. H. Robinson Worldwide, Inc.)
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Company Note (collectively, the ServicerOriginator and any such other holder are called the “Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of (i) the Senior Liabilities Interests and (ii) each L/C Note, to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence each of an Event of Default, the Senior Liabilities Interests and the outstanding balance of the L/C Note shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any further payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to (x) in the Indenture Trustee case of the Senior Interests, the Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders), and the Insurer); and (y) in the Servicer case of any L/C Note, to the holder thereof; (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Administrative Agent (for the benefit of the Senior Interest Holders) and the holders of the L/C Notes, respectively, until the Senior Interests and the L/C Notes shall have been paid and performed in full and in cash; and (iii) the Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersPurchasers), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests and the L/C Note shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, whatsoever in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and the L/C Notes and shall be turned over by the Servicer Holder to (i) the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders) and (ii) to the extent the Senior Interests have been paid and performed in full and in cash, to the holders of the L/C Notes forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the Insurer) forthwithterms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined Interests; and all payments and distributions received by the Indenture Trustee holders of the L/C Notes in respect of this Company Note, to the extent received in or converted into cash, may be applied by such holder first to the payment of any and all expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the holders of the L/C Notes in accordance with the Indenture; but enforcing these Subordination Provisions, or in endeavoring to collect or realize upon this Company Note, and any balance thereof shall, solely as between the Sponsor Originator and its creditorsthe holders of the L/C Notes, no be applied by such holder toward the payment of the L/C Notes;
(d) Notwithstanding any payments or distributions received by the Senior Interest Holders or the holders of the L/C Notes in respect of this Company Note, while any kind Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders or character shall be deemed to be payments or distributions the holders of the L/C Notes in respect of the Senior Liabilities.
(c) Upon Interests or the final payment L/C Notes until the Senior Interests and the L/C Notes have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders or the Junior Liabilities are paid holders of the L/C Notes in full.respect of this Company Note) to the extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders Senior Interest Holders and the Insurer)holders of the L/C Notes, on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders Senior Interest Holders and the Insurerholders of the L/C Notes) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders Senior Interest Holders and the Insurerholders of the L/C Notes).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests and the L/C Notes have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities L/C Notes, this Company Note or any rights in respect hereof hereof, or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee Administrative Agent, the Purchasers and the Insurer Holders of the L/C Notes in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests and the L/C Notes shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest or L/C Note is rescinded or must be restored or returned by the Indenture Trustee or Noteholders a Senior Interest Holder or the Insurer holder of any L/C Note, respectively (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders or, when no Senior Interests are outstanding, the holders of the L/C Note may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests or the L/C Notes, as applicable; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests or the L/C Notes, as applicable; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests or the L/C Notes, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests or the L/C Notes, in each case as applicable; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests or the L/C Notes, as applicable; or (vi) extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.property securing any of the Senior Interests or the L/C Notes, as applicable;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and Senior Interest Holders or the Insurerholders of the L/C Notes, as applicable; (ii) notice of the existence, creation, non-payment or non-non- performance of all or any of the Senior LiabilitiesInterests and the L/C Notes; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests and the L/C Notes, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders and the holders of the L/C Notes, as applicable may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests or the L/C Notes, as applicable, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests or L/C Notes, as applicable, shall be and remain Senior Interests or L/C Notes, as applicable, for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or L/C Notes or of any interest of such assignee or transferee in the Senior Interests or the L/C Notes shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests or the L/C Notes, as applicable; and these Subordination Provisions are made for the benefit of the Noteholders Senior Interest Holders and the Insurerholder of the L/C Note, and the Indenture Trustee Administrative Agent or holders of the L/C Notes may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Receivables Purchase Agreement and Purchase and Sale Agreement (Armstrong World Industries Inc)
Subordination Provisions. (i) The Sponsor covenants and agreessubordination provisions contained in this Section 4 (the “Subordination Provisions”) are for the direct benefit of, and may be enforced by, the ServicerAgent and the Purchasers and/or any of their respective assignees (collectively, by its acceptance of the “Senior Claimants”) under the Purchase Agreement. Subject to the Subordination Provisions, Originator shall have the right to receive, and SPV shall make, any and all payments relating to the loans made under this Note, likewise covenants Subordinated Note and agrees, each other Subordinated Note (the “Junior Claims”). Originator hereby agrees that the payment of all Junior Liabilities is hereby expressly subordinated Originator shall be subordinate in right of payment to the prior payment and performance of the Senior Liabilities any indebtedness or obligation of SPV owing to the extent Agent or any Purchaser under that certain Receivables Purchase Agreement dated as of July 24, 2018, by and in among SPV, the manner set forth in the following clauses of this paragraph 7:
Servicer (i) In the event of any dissolutionas defined therein), winding up, liquidation, readjustment, reorganization or other similar event relating various “Purchasers” from time to the Sponsor, whether voluntary or involuntary, partial or completetime party thereto, and whether in bankruptcyMUFG Bank, insolvencyLtd., receivership as the “Agent” (as amended, restated, supplemented or other similar proceedingsotherwise modified from time to time, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy ProceedingsPurchase Agreement”), and (ii) . Until the date on and after which all “Capital” outstanding under the occurrence of an Event of Default, the Senior Liabilities shall first be paid and performed Purchase Agreement has been repaid in full and in cash before all other obligations of SPV and/or the Servicer thereunder and under the “Fee Letter” referenced therein (all such obligations, collectively, the “Senior Claim”) have been indefeasibly paid and satisfied in full, Originator shall be entitled to receive and to retain not institute against SPV any payment or distribution in respect proceeding of the Junior Liabilities. In order to implement the foregoing: (xtype described in Section 5.1(d) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, Sale Agreement unless and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of Collection Date has occurred. Should any of the events described in clause (a)(i) payment, distribution or (ii), in the event that the Servicer receives any payment security or proceeds or other distribution of any kind or character from the Sponsor SPV or from any other source whatsoever, in respect of Junior Claims, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, be received by Originator in violation of this Section 4, Originator agrees that such payment or other distribution shall be received in trust for the Indenture Trustee Senior Claimants and shall immediately be turned over in cash by the Servicer Originator to the Indenture Trustee Agent (for the benefit of the Noteholders, Senior Claimants) until the Senior Claim have been indefeasibly paid and the Insurer) forthwithperformed in full and in cash. All payments and distributions received by the Indenture Trustee Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Agent (for the benefit of the Noteholders and the InsurerSenior Claimants) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Agent or the Insurer Senior Claimants in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior LiabilitiesClaims, and second, any balance thereof shall, solely as between the Servicer any originator (including Originator hereunder) and the Noteholders and the InsurerSenior Claimants, be applied by the Indenture Trustee Agent toward the payment of the Senior Liabilities Claim in a manner determined by the Indenture Trustee Agent to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor SPV and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Receivables Sale Agreement (Patterson Companies, Inc.)
Subordination Provisions. The Sponsor Borrower covenants and agrees, and the ServicerIntercompany Lender and any other assignee, transferee or pledgee of this Loan Agreement or any Subordinated Loans (collectively, the “Holder”), by its acceptance of any sale, assignment, transfer or pledge of this NoteLoan Agreement or any Subordinated Loans, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities is the principal amount of and interest on the Subordinated Loans and any other payments owing under this Loan Agreement are hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7Section 10:
(a) No payment or other distribution of the Borrower’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Loan Agreement or any Subordinated Loan except to the extent such payment or other distribution is either (i) made from funds expressly available for such purpose pursuant to Section 3.01(a) of the Receivables Financing Agreement and such payment or other distribution is permitted under Section 7.01(r) of the Receivables Financing Agreement or (ii) made on or after the Final Payout Date;
(b) In the event of any dissolution, winding up, liquidation, administration, readjustment, reorganization reorganization, moratorium or other similar event relating to the SponsorBorrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, administration or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Borrower or any sale of all or substantially all of the assets of the Sponsor except pursuant to Borrower other than as permitted by the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Loan Agreement or any Subordinated Loan. In order to implement the foregoing, in the event of any Bankruptcy Proceedings relating to the Borrower: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Loan Agreement or any Subordinated Loan to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount owed under this Loan Agreement (and if the Holder does not promptly do so, the Administrative Agent may), and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersSecured Parties), may in the name of the Servicer Holder or otherwise, may demand, xxx sue for, collect, receive and receipt for any and all such payments or distributions, and file, file and prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Loan Agreement or any Subordinated Loan, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Borrower or from any other source whatsoever, in respect of this Loan Agreement or any Subordinated Loan, other than as expressly permitted by the Junior Liabilitiesterms of this Loan Agreement, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) forthwith (in each case no later than two (2) Business Days after receipt thereof). The Holder will mark its books and records so as clearly to indicate that this Loan Agreement and the Insurer) forthwithSubordinated Loans are subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this NoteLoan Agreement or any Subordinated Loan, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring endeavouring to collect or realize upon this Loan Agreement and the Junior LiabilitiesSubordinated Loans, and any balance thereof shall, solely as between the Servicer Borrower and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 3.01(a) of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by Interests or as otherwise required under Section 3.01(a) of the Indenture Trustee to be in accordance with the IndentureReceivables Financing Agreement; but as between the Sponsor Borrower and its creditorsthe Intercompany Lender, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Subordinated Loans;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Loan Agreement or any Subordinated Loan, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Loan Agreement or any Subordinated Loan) to the Junior Liabilities extent funds are paid in full.expressly available for that purpose pursuant to Section 3.01(a) of the Receivables Financing Agreement and that any payment arising out of the exercise of such rights would be permitted under Section 7.01(r) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) Loan Agreement is intended to or shall impair, as between the SponsorBorrower, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBorrower’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on the Subordinated Loans as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Borrower (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBorrower, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Loan Agreement or any rights in respect hereof or (ii) convert the Junior Liabilities this Loan Agreement or any Subordinated Loan into an equity interest in the SponsorBorrower, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Lender, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Borrower until at least one year and one day shall have passed since the Termination Final Payout Date.;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Sale Agreement (Sabre Corp)
Subordination Provisions. The Sponsor Borrower covenants and agrees, and the ServicerServicer and each Originator and any other assignee, transferee or pledgee of this Loan Agreement or any Subordinated Loans (collectively, the “Holder”), by its acceptance of any sale, assignment, transfer or pledge of this NoteLoan Agreement or any Subordinated Loans, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities is the principal amount of and interest on the Subordinated Loans and any other payments owing under this Loan Agreement are hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7Section 10:
(a) No payment or other distribution of the Borrower’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Loan Agreement or any Subordinated Loan except to the extent such payment or other distribution is either (i) made from funds expressly available for such purpose pursuant to Section 3.01(a) of the Receivables Purchase Agreement and such payment or other distribution is permitted under Section 7.01(r) of the Receivables Purchase Agreement or (ii) made on or after the Final Payout Date;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBorrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Borrower or any sale of all or substantially all of the assets of the Sponsor except pursuant to Borrower other than as permitted by the Sale and Servicing Contribution Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Loan Agreement or any Subordinated Loan. In order to implement the foregoing, in the event of any Bankruptcy Proceedings relating to the Borrower: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Loan Agreement or any Subordinated Loan to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall timely file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount owed under this Loan Agreement (and if the Holder does not timely do so, the Administrative Agent may), and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersSecured Parties), may in the name of the Servicer Holder or otherwise, may demand, xxx sue for, collect, receive and receipt for any and all such payments or distributions, and file, file and prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Loan Agreement or any Subordinated Loan, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Borrower or from any other source whatsoever, in respect of this Loan Agreement or any Subordinated Loan, other than as expressly permitted by the Junior Liabilitiesterms of this Loan Agreement, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) forthwith (in each case no later than two (2) Business Days after receipt thereof). The Holder will mark its books and records so as clearly to indicate that this Loan Agreement and the Insurer) forthwithExhibit B-4 Subordinated Loans are subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this NoteLoan Agreement or any Subordinated Loan, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon this Loan Agreement and the Junior LiabilitiesSubordinated Loans, and any balance thereof shall, solely as between the Servicer Borrower and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 3.01(a) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by Interests or as otherwise required under Section 3.01(a) of the Indenture Trustee to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor Borrower and its creditorsthe Originators, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Subordinated Loans;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Loan Agreement or any Subordinated Loan, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Loan Agreement or any Subordinated Loan) to the Junior Liabilities extent funds are paid in full.expressly available for that purpose pursuant to Section 3.01(a) of the Receivables Purchase Agreement and that any payment arising out of the exercise of such rights would be permitted under Section 7.01(r) of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) Loan Agreement is intended to or shall impair, as between the SponsorBorrower, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBorrower’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on the Subordinated Loans as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Borrower (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBorrower, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Loan Agreement or any rights in respect hereof or (ii) convert the Junior Liabilities this Loan Agreement or any Subordinated Loan into an equity interest in the SponsorBorrower, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent; Exhibit B-5
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Borrower until at least one year and one day shall have passed since the Termination Final Payout Date.;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Exhibit B-6 Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Labcorp Holdings Inc.)
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under Section 8.01(r) of the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustmentcomposition or readjustment of debt, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, appointment of a receiver, trustee (other than a trustee under a deed of trust, indenture or any similar instrument), custodian, sequestrator (or other marshalling similar official) for Buyer or the creditors of the assets and liabilities of the Sponsor Buyer, or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Receivables Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersPurchasers), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 3.01 of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 7.01(q) of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor covenants and agrees, and the Servicer, by its acceptance of obligations under this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby Subordinated Note are expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests, and any payment hereunder is pari passu in right of payment and performance to all other Junior Liabilities, to the extent and in the manner set forth in the following clauses of this paragraph 79 (the “Subordination Provisions”). Buyer covenants and agrees, and the Originator and other assignee, transferee or pledgee of this Subordinated Note (collectively, the Originator and any such other assignee, transferee or pledgee are called the “Holder”), by its acceptance of any sale, assignment, transfer or pledge of this Subordinated Note, shall be deemed conclusively to have agreed for the benefit of the Senior Interest Holders, to the Subordination Provisions and the Originator and each Holder by its acceptance of this Subordinated Note shall be bound by such provisions:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under Section 8.01(s) of the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Subordinated Note;
(i) In the event of any dissolution, winding up, liquidation, readjustmentcomposition or readjustment of debt, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, appointment of a receiver, trustee (other than a trustee under a deed of trust, indenture or any similar instrument), custodian, sequestrator (or other marshalling similar official) for Buyer or the creditors of the assets and liabilities of the Sponsor Buyer, or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Receivables Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and or after the occurrence of an Event the occurrence of Defaultthe Purchase and Sale Termination Date or the Termination Date, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount owed under this Subordinated Note (and if the Holder does not timely do so, the Administrative Agent may), and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersPurchasers), may in the name of the Servicer Holder or otherwise, may demand, xxx sue for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Interest Holders in enforcing these the Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer any Holder and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 4.01(a) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests unless applied to the Senior Interests in accordance with the Receivables Purchase Agreement;
(d) In the event that the Holder receives any payment or other distribution of any kind or character from the Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the terms of this Subordinated Note, such payment or other distribution shall be received in trust for the Senior Interest Holders and shall immediately be turned over in cash by the Holder to the Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests have been paid and performed in full in cash. The Holder will mark its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof.
(ce) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 8.01(s) of the Receivables Purchase Agreement;
(df) These The Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these the Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Receivables Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(eg) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fh) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination DateSenior Interests shall have been paid and performed in full and in cash;
(i) The Holder shall not, without the advance written consent of the Administrative Agent and each Purchaser, assert that any Person and the Buyer should be substantively consolidated or that the Buyer is not or was not a limited liability company separate and distinct from the Originator or any other Person;
(j) The Holder shall not, without the advance written consent of the Administrative Agent and each Purchaser, institute, or cause or require the Originator to institute, any action or suit or exercise, or cause or require the Originator to exercise, any rights or remedies of the Originator upon or with respect to any breach or default by the Buyer or any other Person under any of the Transaction Documents or attempt to prohibit or restrict any sale or other transfer of the Receivables or Related Rights under the Receivables Sale Agreement or to interfere in any manner with the transactions contemplated under the Receivables Sale Agreement or the Receivables Purchase Agreement.
(gk) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these the Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hl) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice or demand to the ServicerHolder, and without waiving any of its rights under these the Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(im) The Servicer Holder hereby waives: (i) notice of acceptance of these the Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jn) These Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of the Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of the Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(o) The Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these the Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Term Note (collectively, Originator and any such other holder are called the Servicer" HOLDER"), by its acceptance of this Term Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Term Note, that the payment of all Junior Liabilities the principal amount of and interest on this Term Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7PARAGRAPH 9:
(a) No payment or other distribution of the Company's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Term Note except to the extent such payment or other distribution is (i) permitted under CLAUSE (n) of EXHIBIT IV to the Loan and Servicing Agreement or (ii) made pursuant to CLAUSE (a) or (b) of PARAGRAPH 6 of this Term Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”"BANKRUPTCY PROCEEDINGS"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Term Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Term Note to which the Servicer Holder would be entitled except for this clause CLAUSE (ab) shall be made directly to the Indenture Trustee Lender (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Term Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Lender (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Lender, in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Term Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Term Note, other than as expressly permitted by the Junior Liabilitiesterms of this Term Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Lender (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Term Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Lender in respect of this Term Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Lender (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Term Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Lender (in the order of application set forth in SECTION 1.4(d) of the Loan and Servicing Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Term Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Term Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under CLAUSE (n) of EXHIBIT IV to the Loan and Servicing Agreement; 4
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Term Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Term Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Term Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Term Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee and the Insurer Lender in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer Lender, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Term Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Lender may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Allete)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerSellers, by its their acceptance of this Seller Note, likewise covenants covenant and agreesagree, that the payment of all Junior Liabilities is obligations of the Company to the Sellers under this Seller Note from or with the proceeds (such proceeds being the "Proceeds") of Receivables (as defined in the Pooling Agreement), Related Property (as defined in the Pooling Agreement) or the LHL Demand Note (as defined in the Pooling Agreement) (and any extensions, renewals, financing, refundings and replacements of all or any part of such obligations) (the "Seller Subordinated Debt") are hereby expressly subordinated in right of payment to the payment and performance of the obligations of the Company to the Trustee for the benefit of the Holders (as defined in the Pooling Agreement) howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due (the "Senior Liabilities Obligations") to the extent and in the manner set forth in this paragraph including each of the following clauses of this paragraph 7subparts:
(ia) Insolvency Events; Priority of Senior Obligations; Payments Made Directly to the Trustee. In the event of any bankruptcy, dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company (each an "Insolvency Event") or any sale of all or substantially all of the assets of the Sponsor Company (except pursuant to the Sale Pooling Agreement and Servicing Agreement any Supplement thereto),
(such proceedings being herein collectively called “Bankruptcy Proceedings”), and (iii) on and after the occurrence of an Event of Default, the Senior Liabilities Obligations shall first be paid and performed in full and in cash before the Servicer Sellers shall be entitled to receive and to retain any payment or distribution from or with the Proceeds in respect of the Junior Liabilities. In order to implement Seller Subordinated Debt, whether of principal, interest or otherwise; and
(ii) any payment or distribution from or with the foregoing: (x) all payments and distributions Proceeds of any kind (including cash or character property arising from Proceeds which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Seller Subordinated Debt) in respect of the Junior Liabilities to which the Servicer Seller Subordinated Debt that otherwise would be entitled except for this clause (a) payable or deliverable with respect to the Seller Subordinated Debt directly or indirectly, by set-off or in any other manner to the Sellers, shall be made paid or delivered by the Person making such payment or delivery (whether a trustee in bankruptcy, a receiver, custodian, liquidating trustee or otherwise) directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), Holders for application to (in the name case of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or as collateral for (ii), in the event that the Servicer receives any payment case of noncash property or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurersecurities) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, Obligations until the Senior Liabilities Obligations shall have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Receivables Sale Agreement (Lifestyle Furnishings International LTD)
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer“Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the Noteholders)Purchasers) may, in the name of the Servicer Holder or otherwise, may demand, xxx sxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unlessunless Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jl) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(m) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and KU and any other holder of this Company Note (collectively, KU and any such other holder are called the Servicer"HOLDER"), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7PARAGRAPH 9:
(a) No payment or other distribution of the Company's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under PARAGRAPH 1(m) of EXHIBIT IV of the Receivables Purchase Agreement or (ii) made pursuant to CLAUSE (a) or (b) of PARAGRAPH 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”"BANKRUPTCY PROCEEDINGS"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer KU shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause CLAUSE (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Purchaser (or the Administrator acting on behalf of the NoteholdersPurchaser's behalf), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer KU and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in SECTION 1.4(d)(ii) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under PARAGRAPH 1(m) of EXHIBIT IV of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee Administrator and the Insurer Purchaser in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Louisville Gas & Electric Co /Ky/)
Subordination Provisions. The Sponsor covenants and agreesSubject to the following provisions, and provided no unrescinded notice of default under the Servicer, by its acceptance terms of this NoteSubordinated Deed of Trust then appears of record, likewise covenants and agreesthis Subordinated Deed of Trust shall, that upon recordation of the payment Notice of all Junior Liabilities is hereby expressly subordinated in right of payment Subordination described below, be subordinate to the payment following:
1. A first priority deed of trust, to be hereafter executed by Trustor, or his or her successor in interest, covering the property, and performance to be recorded in the Office of the Senior Liabilities County Recorder of San Bernardino County, to secure a loan (hereafter called the extent and in "CONSTRUCTION LOAN") from Bank of America Community Development Bank (hereafter called "LENDER") for the manner set forth in purpose of constructing improvements on the following clauses of this paragraph 7property, provided:
(ia) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling The total principal amount of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Construction Loan shall first be paid and performed in full and in cash before the Servicer shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.not exceed $5,000,000;
(b) Following Any funds derived from the occurrence Construction Loan shall be used only for the construction on the property of any of a facility for warehouse and materials handling purposes (the events described in clause (a)(i) or (ii"Improvements"), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received permitted in or converted into cashthis Deed of Trust, may be applied by the Indenture Trustee (for the benefit loan fees, interest, or other charges directly connected with the construction of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Improvements;
(c) Upon No portion of the final payment in full and in cash of all Senior Liabilities, the Servicer Construction Loan shall be subrogated used to pay loan fees, interest, or other charges not directly connected with the rights construction of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.Improvements;
(d) These Subordination Provisions are intended solely for the purpose The Construction Loan shall not bear interest, exclusive of defining the relative rights of the Servicerlate charges, on the one handpenalties, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and fees payable in accordance with the terms hereof case of default, greater than prime plus two percent (subject to paragraph 10 hereofp+2%) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer)per annum.
(e) The Servicer Construction Loan shall notaccrue interest, until and shall be all due and payable not sooner than six (6) months from the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation date of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due Construction Loan (other than the Senior Liabilitiesabsent a default), nor later than fourteen (14) months from the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent date of the Indenture Trustee and the Insurer in each caseConstruction Loan.
(f) The Servicer shall not, except without the advance written consent proceeds of the Indenture Trustee Construction Loan shall be disbursed by the Lender either through its own offices or through a bonded disbursement control agency only after inspection of the work completed on the property and presentation of vouchers (or other similar documentation) signed by the Insurer commenceTrustor or his or her successors in interest for the cost of work, labor, or join with any other Person materials actually performed or used in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since construction of improvements on the Termination Dateproperty.
(g) IfTrustor has delivered to the Trustee or Beneficiary a binding written commitment from an institutional lender to make a permanent loan on the property, at any timefurther described below, any on completion of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been madeImprovements.
(h) The Indenture Trustee (on behalf of Noteholders remaining terms and the Insurer) may, from time to time, with the consent provisions of the Insurer without notice Construction Loan shall be as required by the Lender. Within 10 days after receipt of a written request therefor from Trustor, Beneficiary shall execute a separate Notice of Subordination, in recordable form, in favor of the Construction Loan to which this Deed of Trust is hereby subordinated, and deliver the Notice of Subordination to the ServicerLender or Lender's title company designated by Trustor. To the extent of any discrepancy, the terms of any such Notice of Subordination shall prevail over the subordination provisions provided for in this Deed of Trust.
2. Permanent financing, as more fully described below:
(a) A first priority deed of trust, to be hereafter executed by Trustor, or his or her successor in interest, covering the property, and without waiving any of its rights under these Subordination Provisions, take any or all to be recorded in the Office of the following actions: retain or obtain an interest in any property County Recorder of San Bernardino County, to secure any a loan (hereafter called "BofA Loan") from Bank of America Community Development Bank (hereafter called "Lender") for the purpose of paying a portion of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period)Construction Loan, alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.provided:
(i) The Servicer total principal amount of the BofA Loan shall not exceed $4,000,000;
(ii) Any funds derived from the BofA Loan shall be used only for the payment of the Construction Loan, and to the extent permitted in this Deed of Trust, for the loan fees, interest, or other charges directly connected with the construction of the Improvements;
(iii) No portion of the BofA Loan shall be used to pay loan fees, interest, or other charges not directly connected with the payment of the Construction Loan;
(iv) The BofA Loan shall not bear interest, exclusive of late charges, penalties, or fees payable in case of default, greater than prime plus one percent (p+ 1%) per annum.
(v) The BofA Loan shall be payable in equal monthly installments of principal and interest amortized over a period of time of not less than twenty five (25) years from the date of the BofA Loan, with the total unpaid balance all due and payable not sooner than ten (10) years from the date of the BofA Loan.
(vi) The remaining terms and provisions of the BofA Loan shall be as required by the Lender. Within 10 days after receipt of a written request therefor from Trustor, Beneficiary shall execute a separate Notice of Subordination, in recordable form, in favor of the BofA Loan to which this Deed of Trust is hereby waives: subordinated, and deliver the Notice of Subordination to the Lender or Lender's title company designated by Trustor. To the extent of any discrepancy, the terms of any such Notice of Subordination shall prevail over the subordination provisions provided for in this Deed of Trust.
(b) A second priority deed of trust (junior in priority to the BofA Loan), to be hereafter executed by Trustor, or his or her successor in interest, covering the property, and to be recorded in the Office of the County Recorder of San Bernardino County, to secure a loan (hereafter called "SBA LOAN") from the Small Business Administration (hereafter called "SBA") for the purpose of paying a portion of the Construction Loan, provided:
(i) notice of acceptance of these Subordination Provisions by any The total principal amount of the Noteholders and the Insurer, SBA Loan shall not exceed $1,000,000;
(ii) notice Any funds derived from the SBA Loan shall be used only for the payment of the existenceConstruction Loan, creationand to the extent permitted in this Deed of Trust, non-payment for the loan fees, interest, or non-performance of all or any other charges directly connected with the construction of the Senior Liabilities; and Improvements;
(iii) all diligence in enforcementNo portion of the SBA Loan shall be used to pay loan fees, collection or protection ofinterest, or realization uponother charges not directly connected with the payment of the Construction Loan;
(iv) The SBA Loan shall not bear interest, the Senior Liabilitiesexclusive of late charges, penalties, or any thereoffees payable in case of default, or any security thereforgreater than twelve percent (12%) per annum.
(jv) These Subordination Provisions constitute The SBA Loan shall be payable in equal monthly installments of principal and interest amortized over a continuing offer period of time of not less than twenty (20) years from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit date of the Noteholders SBA Loan, with the total unpaid balance all due and payable not sooner than ten (10) years from the Insurerdate of the SBA Loan.
(vi) The remaining terms and provisions of the SBA Loan shall be as required by the Lender. Within 10 days after receipt of a written request therefor from Trustor, Beneficiary shall execute a separate Notice of Subordination, in recordable form, in favor of the SBA Loan to which this Deed of Trust is hereby subordinated, and deliver the Indenture Trustee may proceed Notice of Subordination to enforce the SBA or SBA's title company designated by Trustor. To the extent of any discrepancy, the terms of any such Notice of Subordination shall prevail over the subordination provisions on behalf provided for in this Deed of each of such PersonsTrust.
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under the Receivables Purchase Agreement or (ii) made pursuant to paragraph 4 or clause (a) or (b) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Receivables Sale and Servicing Contribution Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Regions Bank (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to Regions Bank (for the Insurer)benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Regions Bank, may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, whatsoever in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Regions Bank (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. All payments and distributions received by the Indenture Trustee Regions Bank in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Regions Bank (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by Regions Bank (in the Indenture Trustee order of application set forth in Article IV of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Regions Bank;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer Regions Bank, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Regions Bank may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Receivables Sale and Contribution Agreement (StarTek, Inc.)
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerHolder, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities to the extent and in the manner set forth in the following clauses of this paragraph 7paragraph:
(ia) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of DefaultProceeding, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Holder would be entitled except for this clause CLAUSE (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, itself and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), and (ii) if a Bankruptcy Proceeding has been commenced, the Holder shall promptly file a claim or claims, in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent form required in any such Bankruptcy Proceedings with respect to any and all claims Proceedings, for the full outstanding amount of the Servicer relating to the Junior Liabilities, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in each case respect thereof to be made directly to the Trustee (for the benefit of itself and the Noteholders) until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect payment of the Junior Liabilities, after the commencement of any Bankruptcy Proceeding, such payment or other distribution shall be received in trust for the Indenture Trustee and the Noteholders and shall be turned over by the Servicer Holder to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final indefeasible payment in full and in cash of all Senior Liabilities, the Servicer Holder shall be subrogated to the rights of the Indenture Trustee and the Noteholders to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Noteholders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders Trustee and the InsurerNoteholders) and the ServicerHolder, the Sponsor’s Buyer's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders Trustee and the InsurerNoteholders).
(e) The Servicer Holder shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of Buyer (other than to the SponsorSenior Liabilities), howsoever created, arising or evidenced, whether direct or Exhibit A-3 indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (other than the Senior Liabilities)due, the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorBuyer, unless, in the case of each of clauses CLAUSES (i) and (ii) above), the Servicer Holder shall have received the prior written consent of the Indenture Trustee and the Insurer in each case; provided, however, if the Holder is Xxxxxx, Inc., then the Holder may convert the Junior Liabilities into an equity interest in Buyer without the Trustee's consent.
(f) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer Trustee, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since after the Termination DateSenior Liabilities shall have been finally paid and performed in full and in cash; PROVIDED, HOWEVER, that the Holder shall at all times have the right to file any claim in or otherwise take any action with respect to any insolvency proceeding instituted against Buyer by any Person other than the Holder or any other Xxxxxx Person (provided that no such action may be taken by the Holder until such proceeding has continued undismissed, unstayed and in effect for a period of 10 days).
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Noteholder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Each of the Trustee (on behalf of Noteholders and the Insurer) Noteholders may, from time to time, with the consent of the Insurer in its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior Liabilities; , (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; , (iii) extend or renew for one or more periods (whether or not longer than the original period), alter alter, increase or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; , (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; Transaction Document to which it is a party, and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by the Trustee or any of the Noteholders and the InsurerNoteholders, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; , and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor Buyer to all Persons who become the holders of, or who continue to hold, Senior Liabilities; , and these Exhibit A-4 Subordination Provisions are made for the benefit of the Noteholders Trustee and the InsurerNoteholders, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator and any other holder of this Company Note (collectively, the Originator and any such other holder are called the "HOLDER"), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7PARAGRAPH 9:
(a) No payment or other distribution of the Company's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under PARAGRAPH 1(M) of EXHIBIT IV of the Receivables Purchase Agreement or (ii) made pursuant to CLAUSE (A) or (B) of PARAGRAPH 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”"BANKRUPTCY PROCEEDINGS"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoingforegoing during any Bankruptcy Proceeding: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Purchasers (or the Administrator acting on behalf of the NoteholdersPurchasers' behalf), in the name of the Servicer Holder or otherwise, may demand, xxx forsue xxr, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will marx xxs books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in SECTION 1.4(D)(II) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under PARAGRAPH 1(m) of EXHIBIT IV of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee Administrator and the Insurer Purchasers in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Purchasers, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Worthington Industries Inc)
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer“Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the NoteholdersPurchasers), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unlessunless Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Borrower covenants and agrees, and the Servicer, by its acceptance of this Note, MNK Lender likewise covenants and agrees, that the payment of all Junior Liabilities the principal amount of and interest on this Intercompany Loan is hereby expressly subordinated in right of payment to the payment and performance in full and in cash of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 710:
(a) No payment or other distribution of the Borrower’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Intercompany Loan except to the extent such payment or other distribution is (i) made only out of the funds the Borrower receives pursuant to Section 2.21 of the ABL Credit Agreement, and no Event of Default or Default shall have occurred and be continuing, or (ii) made pursuant to clause (a) or (b) of paragraph 7 of this Intercompany Loan;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBorrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Borrower or any sale of all or substantially all of the assets of the Sponsor except pursuant to Borrower other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash cash, including, without limitation, all interest, fees, charges, expenses and indemnities accruing after the commencement of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, before the Servicer MNK Lender shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Intercompany Loan. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Intercompany Loan to which the Servicer MNK Lender would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) if the MNK Lender shall file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Intercompany Loan, it shall use commercially reasonable efforts to cause said claim or claims to be made directly to the Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and the Insurer)performed in full and in cash; and (yiii) the Servicer MNK Lender hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersLenders), may in the name of the Servicer MNK Lender or otherwise, may demand, xxx sue for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer MNK Lender relating to the Junior Liabilitiesthis Intercompany Loan, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer MNK Lender receives any payment or other distribution of any kind or character from the Sponsor Borrower or from any other source whatsoever, in respect of this Intercompany Loan, other than as expressly permitted by the Junior Liabilitiesterms of this Intercompany Loan, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer MNK Lender to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The MNK Lender will mark its books and records so as clearly to indicate that the Borrower’s interest in this Intercompany Loan is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this NoteIntercompany Loan, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees the fees, charges and disbursements of legal expensescounsel) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Intercompany Loan, and any balance thereof shall, solely as between the Servicer MNK Lender and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 2.21(c) of the ABL Credit Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Borrower and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Intercompany Loan, while any Bankruptcy Proceedings are pending the MNK Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer MNK Lender shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Intercompany Loan) to the Junior Liabilities are paid in full.extent that (i) any payment arising out of the exercise of such rights would be made only out of the funds the Borrower receives pursuant to Section 2.21 of the ABL Credit Agreement and (ii) no Event of Default or Default shall have occurred and be continuing;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerMNK Lender, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) Intercompany Loan is intended to or shall impair, as between the SponsorBorrower, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerMNK Lender, the SponsorBorrower’s obligation, which is unconditional and absolute, to pay the Junior Liabilities MNK Lender the principal of and interest on this Intercompany Loan as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Lender and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due Borrower (other than the Senior LiabilitiesInterest Holders), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.;
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under Section 8.01(r) of the Receivables Financing Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersLenders), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.; Exhibit B-3 Purchase and Sale Agreement (NuStar) 708335522 13436693
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 4.01(a) of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 8.01(r) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity Exhibit B-4 Purchase and Sale Agreement (NuStar) 708335522 13436693 interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Lender, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify any Transaction Document as permitted by the Sale and Servicing Agreement or terms of any related documentsuch Transaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and Exhibit B-5 Purchase and Sale Agreement (NuStar) 708335522 13436693
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under Section 7.01(s) of the Receivables Financing Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersLenders), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note or the Transaction Documents, such payment or other distribution Exhibit B-3 Purchase and Sale Agreement (NCR) shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 3.01(a) of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 7.01(r) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Lender, commence, or join with any other Person in Exhibit B-4 Purchase and Sale Agreement (NCR) commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests in accordance with the Transaction Documents, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iviii) amend, supplement, amend and restate, or otherwise modify any Transaction Document, subject to the Sale and Servicing Agreement or any related documentterms thereof; and (viv) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter release or exchange compromise any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer“Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the NoteholdersPurchasers), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unlessunless Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer each Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerHolder, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7paragraph:
(ia) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of DefaultProceeding, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Holder would be entitled except for this clause (a) shall be made directly to the Indenture Trustee Agent (for the benefit of itself and the NoteholdersPurchasers), and (ii) if a Bankruptcy Proceeding has been commenced, the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Holder shall promptly file a claim or claims, in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent form required in any such Bankruptcy Proceedings with respect to any and all claims Proceeding, for the full outstanding amount of the Servicer relating to the Junior Liabilities, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in each case respect thereof to be made directly to the Agent (for the benefit of itself and the Purchasers) until the Senior Liabilities Interests shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect payment of the Junior Liabilities, after the commencement of any Bankruptcy Proceeding, such payment or other distribution shall be received in trust for the Indenture Trustee Agent and the Purchasers and shall be turned over by the Servicer Holder to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) Agent forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final indefeasible payment in full and in cash of all Senior LiabilitiesInterests, the Servicer Holder shall be subrogated to the rights of the Indenture Trustee Agent and the Purchasers to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities Interests until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders Agent and the Insurer), Purchasers on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders Agent and the InsurerPurchasers) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect effect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders Agent and the InsurerPurchasers).
(e) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of Buyer (other than to the SponsorSenior Interests), howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (other than the Senior Liabilities)due, the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorBuyer, unless, in the case of each of clauses (i) and (ii) above), the Servicer Holder shall have received the prior written consent of the Indenture Trustee and the Insurer Instructing Group in each case.
(f) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer not commence, or join with any other Person in commencing, any proceeding of the type referred to in the definition of Bankruptcy Proceedings Event with respect to the Sponsor Buyer until at least one year and one day shall have passed since after the Termination DateSenior Interests shall have been finally paid and performed in full and in cash; provided, however, that the Holder shall at all times have the right to file any claim in or otherwise take any action with respect to any insolvency proceeding instituted against Buyer by any Person other than the Holder (provided that no such action may be taken by the Holder until such proceeding has continued undismissed, unstayed and in effect for a period of 10 days).
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Receivable is rescinded or must be restored or returned by the Indenture Trustee Agent or Noteholders or the Insurer a Purchaser (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf Each of Noteholders the Agent and the Insurer) Purchasers may, from time to time, with the consent of the Insurer in its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior Liabilities; Interests, (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; Interests, (iii) extend or renew for one or more periods (whether or not longer than the original period), alter alter, increase or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; Interests, (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; Transaction Document to which it is a party, and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer Holder hereby waives: (i) notice of of` acceptance of these Subordination Provisions by the Agent or any of the Noteholders and the InsurerPurchasers, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; Interests, and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing continuing, offer from the Sponsor Buyer to all Persons who become the holders of, or who continue to hold, Senior Liabilities; Interests, and these Subordination Provisions are made for the benefit of the Noteholders Agent and the InsurerPurchasers, and the Indenture Trustee Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under Section 8.01(w) of the Receivables Financing Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersLenders), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 4.01(a) of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 8.01(r) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Lender, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify any Transaction Document, on the Sale terms and Servicing Agreement or any related documentsubject to the conditions set forth in the Transaction Documents; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Quintiles Transnational Holdings Inc.)
Subordination Provisions. The Sponsor Borrower covenants and agrees, and the Servicer, by its acceptance of this Note, MNK Lender likewise covenants and agrees, that the payment of all Junior Liabilities the principal amount of and interest on this Intercompany Loan is hereby expressly subordinated in right of payment to the payment and performance in full and in cash of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 710:
(a) No payment or other distribution of the Borrower’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Intercompany Loan except to the extent such payment or other distribution is (i) made only out of the funds the Borrower receives pursuant to Section 2.21 of the ABL Credit Agreement, and no Event of Default or Default shall have occurred and be continuing, or (ii) made pursuant to clause (a) or (b) of paragraph 7 of this Intercompany Loan;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBorrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Borrower or any sale of all or substantially all of the assets of the Sponsor except pursuant to Borrower other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash cash, including, without limitation, all interest, fees, charges, expenses and indemnities accruing after the commencement of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, before the Servicer MNK Lender shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Intercompany Loan. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Intercompany Loan to which the Servicer MNK Lender would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) if the MNK Lender shall file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Intercompany Loan, it shall use commercially reasonable efforts to cause said claim or claims to be made directly to the Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and the Insurer)performed in full and in cash; and (yiii) the Servicer MNK Lender hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersLenders), may in the name of the Servicer MNK Lender or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer MNK Lender relating to the Junior Liabilitiesthis Intercompany Loan, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer MNK Lender receives any payment or other distribution of any kind or character from the Sponsor Borrower or from any other source whatsoever, in respect of this Intercompany Loan, other than as expressly permitted by the Junior Liabilitiesterms of this Intercompany Loan, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer MNK Lender to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The MNK Lender will xxxx its books and records so as clearly to indicate that the Borrower’s interest in this Intercompany Loan is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this NoteIntercompany Loan, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees the fees, charges and disbursements of legal expensescounsel) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Intercompany Loan, and any balance thereof shall, solely as between the Servicer MNK Lender and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 2.21(c) of the ABL Credit Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Borrower and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Intercompany Loan, while any Bankruptcy Proceedings are pending the MNK Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer MNK Lender shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Intercompany Loan) to the Junior Liabilities are paid in full.extent that (i) any payment arising out of the exercise of such rights would be made only out of the funds the Borrower receives pursuant to Section 2.21 of the ABL Credit Agreement and (ii) no Event of Default or Default shall have occurred and be continuing;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerMNK Lender, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) Intercompany Loan is intended to or shall impair, as between the SponsorBorrower, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerMNK Lender, the SponsorBorrower’s obligation, which is unconditional and absolute, to pay the Junior Liabilities MNK Lender the principal of and interest on this Intercompany Loan as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Lender and creditors of the Sponsor Borrower (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer MNK Lender shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBorrower, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Intercompany Loan or any rights in respect hereof or (ii) convert the Junior Liabilities this Intercompany Loan into an equity interest in the SponsorBorrower or (iii) amend or modify the Subordination Provisions or the definitions of Senior Interests or Senior Interest Holder or any other term or provision of this Intercompany Loan in any manner adverse to the Senior Interest Holders, unlessunless the MNK Lender shall, in the case of each of clauses (i) and (ii) abovecase, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer MNK Lender shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.Borrower;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerMNK Lender, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentLoan Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer MNK Lender hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Loan Documents to which such Persons are party, but without notice to the MNK Lender, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor MNK Lender to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Interest Holders. These Subordination Provisions are made for the benefit of the Noteholders and Senior Interest Holders, the InsurerSenior Interest Holders are express third party beneficiaries, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Personsthe Senior Interest Holders.
Appears in 1 contract
Subordination Provisions. The Sponsor Initial Purchaser covenants and agrees, and the ServicerOriginator, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph Section 7:
(a) No payment or other distribution of the Initial Purchaser's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is (i) permitted under the Receivables Purchase Agreement or (ii) made pursuant to Sections 4 or 6 of this Note;
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Event of Bankruptcy involving the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”)Initial Purchaser, and (ii) on and after the occurrence of an Event of Defaultthe Sale Termination Date, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Originator would be entitled except for this clause (asubsection 7(b) shall be made directly to the Indenture Trustee Senior Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (y) the Servicer Originator hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Senior Agent, in the name of the Servicer Originator or otherwise, may demand, xxx forsue xxx, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings proceeding with respect to any and all claims of the Servicer Originator relating to the Junior Liabilities, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Originator receives any payment or other distribution of any kind or character from the Sponsor Initial Purchaser or from any other source whatsoever, in respect of the Junior Liabilities, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Originator to the Indenture Trustee Senior Agent (for the benefit of the Noteholders, and Senior Interest Holders) forthwith until the Insurer) forthwithSenior Interests have been paid in full. All payments and distributions received by the Indenture Trustee Senior Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Senior Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including including, without limitation, reasonable attorneys’ ' fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Senior Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Senior Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Senior Agent to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor Initial Purchaser and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(cd) Upon the final payment in full and in cash of all Senior LiabilitiesInterests, the Servicer Originator shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor Initial Purchaser that are applicable to the Senior Liabilities Interests until the Junior Liabilities are paid in full.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerOriginator, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these the Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorInitial Purchaser, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerOriginator, the Sponsor’s Initial Purchaser's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Purchase and Sale and Servicing Agreement or to affect the relative rights of the Servicer Originator and creditors of the Sponsor Initial Purchaser (other than the Noteholders and the InsurerSenior Interest Holders).
(ef) The Servicer Originator shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorInitial Purchaser, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities Liabilities, or any rights in respect hereof thereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorInitial Purchaser, unless, in the case of each of clauses (i) and (ii) above, the Servicer Originator shall have received the prior written consent of the Indenture Trustee and the Insurer Administrator in each case.
(fg) The Servicer Originator shall not, except without the advance written consent of the Indenture Trustee and the Insurer Administrator, commence, or join with any other Person in commencing, any proceedings related to an Event of Bankruptcy Proceedings with respect to the Sponsor Initial Purchaser until at least one year and one day shall have passed since the Termination DateSenior Interests shall have been finally paid and performed in full and in cash.
(gh) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Event of Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerOriginator, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ij) The Servicer Originator hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, 46 or realization upon, upon the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(jk) These Subordination Provisions constitute a continuing offer from the Sponsor Initial Purchaser to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (D & K Healthcare Resources Inc)
Subordination Provisions. The Sponsor covenants and agrees, and the Servicer, by its acceptance of Anything in this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment Credit Agreement or the Security Agreement to the payment and performance contrary notwithstanding, the Holder agrees for the benefit of the Lenders and the Administrative Agent that this Note and the Subordinated Notes represented hereby shall be subordinate and junior to the Advances and all other amounts owing in respect of the Advances, including principal, interest thereon, fees, expenses and other amounts, as well as all other applicable amounts specified in the Security Agreement (collectively, the “Senior Liabilities Obligations”) to the extent and in the manner set forth herein and in the following clauses Credit Agreement and the Security Agreement. If, notwithstanding the provisions of this paragraph 7:
(i) In Note, the event Credit Agreement and the Security Agreement, the Holder shall have received any payment or distribution in respect of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating this Note contrary to the Sponsorprovisions of this Note, whether voluntary the Credit Agreement and the Security Agreement, then, unless and until the Senior Obligations shall have been paid in full in cash or, to the extent the Lenders consent, other than in cash, such payment or involuntary, partial or complete, distribution shall be received and whether held in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment trust for the benefit of, and shall forthwith be paid over and delivered to, the Lenders; provided that if any such payment or distribution is made other than in cash, it shall be held by the Collateral Agent as part of creditorsthe Collateral and subject in all respects to the provisions of the Credit Agreement, the Security Agreement and this Note (including these subordination provisions). By its acceptance of this Note, the Holder agrees with the Lenders and the Administrative Agent that the Holder shall not demand, accept, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character Subordinated Notes in respect violation of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect provisions of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders Credit Agreement and the Insurer) first to Security Agreement, including these subordination provisions; provided that after the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) Lenders have been paid or incurred by the Indenture Trusteein full, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character Holder shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be fully subrogated to the rights of the Indenture Trustee to receive payments or distributions from Lenders. Nothing in these subordination provisions shall affect the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights obligation of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, Company to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and Holder of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer)amounts outstanding under this Note.
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor SPE covenants and agrees, and the Servicer------------------------ Xxxxx, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Indebtedness to the extent and in the manner set forth in the following clauses of this paragraph 7:Section 1.07. To ------------ the extent this Section 1.07 conflicts with the terms of the Loan Agreement, the ------------ terms of the Loan Agreement shall control.
(a) No payment or other distribution of SPE's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is (i) In permitted under the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Loan Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence made pursuant to Section 1.04 or 1.06 of this Note; ------------ ----
(b) If an Event of DefaultBankruptcy has occurred with respect to SPE or the Purchase Termination Date has occurred, then the Senior Liabilities Indebtedness shall first be paid and performed in full and in cash before the Servicer Xxxxx shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Xxxxx would be entitled except for this clause (a) subsection 1.07 shall be made --------------- directly to the Indenture Trustee Senior Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (y) the Servicer Xxxxx hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Senior Agent, in the name of the Servicer Xxxxx or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings proceeding with respect to any and all claims of the Servicer Xxxxx relating to the Junior Liabilities, in each case until the Senior Liabilities Indebtedness shall have been paid and performed in full and in cash.
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Xxxxx receives any payment or other distribution of any kind or character from the Sponsor SPE or from any other source whatsoever, in respect of the Junior Liabilities, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Xxxxx to the Indenture Trustee Senior Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. All payments and distributions received by the Indenture Trustee Senior Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Senior Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including including, without limitation, reasonable attorneys’ ' fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Senior Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer Xxxxx and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Senior Agent toward the payment of the Senior Liabilities Indebtedness in a manner determined by the Indenture Trustee Senior Agent to be in accordance with the IndentureLoan Agreement; but as between the Sponsor Purchaser and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesIndebtedness.
(cd) Upon the final payment in full and in cash of all Senior LiabilitiesIndebtedness, the Servicer Xxxxx shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor SPE that are applicable to the Senior Liabilities Indebtedness until the Junior Liabilities are paid in full.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerXxxxx, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these the Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorSPE, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerXxxxx, the Sponsor’s SPE's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Receivables Purchase Agreement or to affect the relative rights of the Servicer Xxxxx and creditors of the Sponsor SPE (other than the Noteholders and the InsurerSenior Interest Holders).
(ef) The Servicer Xxxxx shall not, until the Senior Liabilities Indebtedness have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorSPE, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Indebtedness, the Junior Liabilities Liabilities, or any rights in respect hereof thereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorPurchaser, unless, in the case of each of clauses (i) and (ii) ----------- ---- above, the Servicer Xxxxx shall have received the prior written consent of the Indenture Trustee and the Insurer Senior Agent in each case.
(fg) The Servicer Xxxxx shall not, except without the advance written consent of the Indenture Trustee and the Insurer Senior Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any federal or state bankruptcy or similar law, with respect to the Sponsor SPE until at least one year and one day shall have passed since the Termination DateSenior Indebtedness shall have been finally paid and performed in full and in cash.
(gh) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Indebtedness is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Event of Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, to the extent consistent with the consent of the Insurer Transaction Documents, at its sole discretion, without notice to the ServicerXxxxx, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesIndebtedness; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesIndebtedness; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesIndebtedness, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesIndebtedness; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesIndebtedness, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ij) The Servicer Xxxxx hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesIndebtedness; and (iii) all diligence in enforcement, collection or protection of, or realization upon, upon the Senior LiabilitiesIndebtedness, or any thereof, or any security therefor.
(jk) These Subordination Provisions constitute a continuing offer from the Sponsor SPE to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesIndebtedness; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Senior Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor WFC covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer"Holder"), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(ia) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorWFC, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor WFC or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement WFC (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Agent, in the name of the Servicer Holder or otherwise, may demand, xxx sue for, collect, receive and receipt for any and all such payments paymexxx or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(b) Following In the occurrence event and during the continuation of any Default or Event of Default under the events described in clause (a)(i) Financing Agreement or (ii)under any other agreement or instrument evidencing or securing any Senior Debt, then unless and until such Default or Event of Default shall have been cured or waived or shall have ceased to exist and any resulting acceleration shall have been rescinded or annulled, or in the event any judicial proceeding shall be pending with respect to any such Default or Event of Default, then no direct or indirect payment, including any payment which may be payable by reason of the payment of any other indebtedness of WFC which is subordinated to the payment of the Subordinated Debt shall be made by or on behalf of WFC on account of the principal of or interest on the Subordinated Debt or on account of the purchase or other acquisition by it of any Subordinated Debt.
(c) In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor WFC or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will mark its books and records so as clearly to indicate that this Cxxxxny Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Agent in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Agent toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor WFC and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, Holder shall not be subrogated to any rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.cash;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorWFC, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s WFC's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor WFC (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorWFC, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorWFC, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee and the Insurer Agent in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor WFC until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify any the Sale and Servicing Financing Agreement or any related documentother Loan Documents; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Financing Agreement, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Senior Interest Holders may proceed to enforce such provisions on behalf of each of such Persons.
(m) Holder and each other holder from time to time of the Subordinated Debt by its acceptance thereof agrees not to sell, assign or transfer all or any part of the Subordinated Debt while any Senior Debt remains unpaid unless such sale, assignment or transfer is made expressly subject to the provisions hereof. Holder represents that no other subordination of the Subordinated Debt is in existence on the date hereof, and Holder agrees that the Subordinated Debt will not be subordinated to any indebtedness other than the Senior Debt; and
(n) Holder and each other holder from time to time of the Subordinated Debt by its acceptance thereof consents and agrees that all Senior Debt shall be deemed to have been made or incurred in reliance upon the subordination of the Subordinated Debt pursuant to this Company Note.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Werner Holding Co Inc /Pa/)
Subordination Provisions. The Sponsor covenants Originator and agreesany other holder of this Revolving Note (collectively, the Originator and any such other holder are called the Servicer"Holder"), by its acceptance of this Revolving Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Revolving Note, that the payment of all Junior Liabilities the principal amount of and interest on this Revolving Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Revolving Note except to the extent such payment or other distribution is (i) permitted under the covenants of the Company set forth in paragraph 1(s) of Exhibit IV of the Receivables Purchase Agreement or (ii) made pursuant to clauses (a) and (b) of paragraph 6 of this Revolving Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Revolving Note. In order to implement the foregoingforegoing during any Bankruptcy Proceeding: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Revolving Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Revolving Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Issuer (or the Agent acting on behalf of the NoteholdersIssuer's behalf), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Revolving Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Revolving Note, other than as expressly permitted by the Junior Liabilitiesterms of this Revolving Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Revolving Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Agent in respect of this Revolving Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Revolving Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Agent (in the order of application set forth in Section 1.4(d)(ii) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Revolving Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Revolving Note) to the Junior Liabilities are paid extent that any payment arising out of the exercise of such rights would be permitted under the covenants of the Company set forth in full.paragraph 1(s) of Exhibit IV of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Revolving Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Revolving Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, Annex B-4 arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Revolving Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Revolving Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee Agent and the Insurer Issuer in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Agent and the Insurer Issuer, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Revolving Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the "Holder"), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the NoteholdersPurchasers), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Buyer's obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Initial Purchaser covenants and agrees, and the ServicerOriginator, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph Section 7:: (a No payment or other distribution of the Initial Purchaser's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is (i) permitted under the Receivables Purchase Agreement or (ii) made pursuant to Sections 4 or 6 of this Note;
(b (i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Event of Bankruptcy involving the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”)Initial Purchaser, and (ii) on and after the occurrence of an Event of Defaultthe Sale Termination Date, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Originator would be entitled except for this clause (asubsection 7(b) shall be made directly to the Indenture Trustee Senior Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (y) the Servicer Originator hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Senior Agent, in the name of the Servicer Originator or otherwise, may demand, xxx forsue xxx, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings proceeding with respect to any and all claims of the Servicer Originator relating to the Junior Liabilities, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator, by its acceptance of this Subordinated Note, likewise covenants and agrees, in each case, for the benefit of the other and for the benefit of the Senior Interest Holders, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests, and any payment hereunder is pari passu in right of payment and performance to all other Junior Liabilities, to the extent and in the manner set forth in the following clauses of this paragraph 7:Section IV (the “Subordination Provisions”):
(i) No payment or other distribution of Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note, except to the extent such payment or other distribution is (a) permitted under the Receivables Purchase Agreement and (b) made pursuant to Sections II or III of this Subordinated Note.
(ii) (a) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating that an Insolvency Event shall have occurred with respect to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedingsCompany, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (iib) on and after the occurrence of an Event of DefaultDefault (under and as defined in the Receivables Purchase Agreement), the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Originator would be entitled except for this clause (aii) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders), and the Insurer); and (y) the Servicer Originator hereby irrevocably agrees that Administrative Agent, acting at the Indenture Trustee (on behalf direction of the Noteholders)Required Purchasers, in the name of the Servicer Originator or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any proceeding related to such Bankruptcy Proceedings Insolvency Event with respect to any and all claims of the Servicer Originator relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall have been paid and performed in full and in cash.
(biii) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Originator receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall immediately be turned over in cash by the Servicer Originator to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) until the Senior Interests (other than unasserted contingent indemnification obligations) have been paid in full and the Insurer) forthwithin cash. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer any SCA Originator (including Originator hereunder) and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(civ) Upon the final payment in full and in cash of all Senior LiabilitiesInterests (other than unasserted contingent indemnification obligations), the Servicer Originator shall be subrogated to the rights of the Indenture Trustee Senior Interests Holders to receive payments or distributions from the Sponsor Company that are applicable to the Senior Liabilities until the Junior Liabilities are paid in fullInterests.
(dv) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerOriginator, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerOriginator, the SponsorCompany’s obligation, which is unconditional and absolute, to pay the Junior Liabilities this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Originator and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).
(evi) The Servicer Originator shall not, (a) until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note, or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unlessthereof, in the case of each of clauses (i) and (ii) abovecase, the Servicer shall have received without the prior written consent of the Indenture Trustee Administrative Agent and the Insurer Required Purchasers or (b) at any time convert this Subordinated Note into an equity interest in each caseCompany.
(fvii) The Servicer Originator shall not, except without the advance written consent of the Indenture Trustee and the Insurer not commence, or join with any other Person in commencing, any Bankruptcy Proceedings proceedings related to an Insolvency Event with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination DateSenior Interests (other than unasserted contingent indemnification obligations) shall have been paid in full and in cash.
(gviii) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings Insolvency Event or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hix) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice or demand to the ServicerOriginator, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (a) retain or obtain an interest in Schedule 2-3 any property to secure securing any of the Senior LiabilitiesInterests pursuant to, and to the extent set forth in, the Transaction Documents; (iib) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iiic) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests in accordance with the Transaction Documents; (ivd) amend, supplement, amend and restate, supplement or otherwise modify any Transaction Document in accordance with the Sale and Servicing Agreement or any related documentterms thereof; and (ve) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ix) The Servicer Originator agrees that this Subordinated Note shall be pari passu with all other Junior Liabilities.
(xi) Originator hereby waives: waives (ia) notice of acceptance of these Subordination Provisions by any of the Noteholders and the InsurerSenior Interest Holders, (iib) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; Interests, and (iiic) all diligence in enforcement, collection or protection of, or realization upon, upon the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(jxii) These Subordination Provisions constitute a continuing offer from the Sponsor Company to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Omnibus Amendment (CHS Inc)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerTransferor and any other holder of this Company Note (collectively, the Transferor and any such other holder are called the “Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 8.01(w) of the Receivables Financing Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Sale and Servicing Contribution Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Transferor shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect of this Company Note to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersSecured Parties), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributionsdistributions in respect of this Company Note, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, whatsoever in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Transferor and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 4.01 of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 8.01(w) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unlessunless Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer Secured Parties, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Alliance Resource Partners Lp)
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Term Note (collectively, Originator and any such other holder are called the Servicer“Holder”), by its acceptance of this Term Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Term Note, that the payment of all Junior Liabilities the principal amount of and interest on this Term Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Term Note except to the extent such payment or other distribution is (i) permitted under clause (o) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Term Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Term Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Term Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Term Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that Purchaser (or the Indenture Trustee (Agent acting on behalf of the NoteholdersPurchaser’s behalf), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Term Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Term Note, other than as expressly permitted by the Junior Liabilitiesterms of this Term Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Term Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Agent in respect of this Term Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Term Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Agent (in the order of application set forth in Section 1.4(c) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Term Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Term Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under clause (o) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Term Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Term Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Term Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Term Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee and Agent, the Insurer and Purchaser in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and Agent, the Insurer and Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Term Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Adesa California, LLC)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator, by its acceptance of this Subordinated Note, likewise covenants and agrees, in each case, for the benefit of the other and for the benefit of the Senior Interest Holders, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests, and any payment hereunder is pari passu in right of payment and performance to all other Junior Liabilities, to the extent and in the manner set forth in the following clauses of this paragraph 7:Section IV (the “Subordination Provisions”):
(i) No payment or other distribution of Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note, except to the extent such payment or other distribution is (a) permitted under the Receivables Purchase Agreement and (b) made pursuant to Sections II or III of this Subordinated Note.
(ii) (a) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating that an Insolvency Event shall have occurred with respect to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedingsCompany, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (iib) on and after the occurrence of an Event of DefaultDefault (under and as defined in the Receivables Purchase Agreement), the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Originator would be entitled except for this clause (aii) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders), and the Insurer); and (y) the Servicer Originator hereby irrevocably agrees that Administrative Agent, acting at the Indenture Trustee (on behalf direction of the Noteholders)Required Purchasers, in the name of the Servicer Originator or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any proceeding related to such Bankruptcy Proceedings Insolvency Event with respect to any and all claims of the Servicer Originator relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall have been paid and performed in full and in cash.
(biii) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Originator receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall immediately be turned over in cash by the Servicer Originator to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) until the Senior Interests (other than unasserted contingent indemnification obligations) have been paid in full and the Insurer) forthwithin cash. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer any SCA Originator (including Originator hereunder) and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(civ) Upon the final payment in full and in cash of all Senior LiabilitiesInterests (other than unasserted contingent indemnification obligations), the Servicer Originator shall be subrogated to the rights of the Indenture Trustee Senior Interests Holders to receive payments or distributions from the Sponsor Company that are applicable to the Senior Liabilities until the Junior Liabilities are paid in fullInterests.
(dv) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerOriginator, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerOriginator, the SponsorCompany’s obligation, which is unconditional and absolute, to pay the Junior Liabilities this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Originator and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).
(evi) The Servicer Originator shall not, (a) until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note, or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unlessthereof, in the case of each of clauses (i) and (ii) abovecase, the Servicer shall have received without the prior written consent of the Indenture Trustee Administrative Agent and the Insurer Required Purchasers or (b) at any time convert this Subordinated Note into an equity interest in each caseCompany.
(fvii) The Servicer Originator shall not, except without the advance written consent of the Indenture Trustee and the Insurer not commence, or join with any other Person in commencing, any Bankruptcy Proceedings proceedings related to an Insolvency Event with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination DateSenior Interests (other than unasserted contingent indemnification obligations) shall have been paid in full and in cash.
(gviii) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings Insolvency Event or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hix) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice or demand to the ServicerOriginator, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (a) retain or obtain an interest in any property to secure securing any of the Senior LiabilitiesInterests pursuant to, and to the extent set forth in, the Transaction Documents; (iib) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iiic) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests in accordance with the Transaction Documents; (ivd) amend, supplement, amend and restate, supplement or otherwise modify any Transaction Document in accordance with the Sale and Servicing Agreement or any related documentterms thereof; and (ve) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ix) The Servicer Originator agrees that this Subordinated Note shall be pari passu with all other Junior Liabilities.
(xi) Originator hereby waives: waives (ia) notice of acceptance of these Subordination Provisions by any of the Noteholders and the InsurerSenior Interest Holders, (iib) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; Interests, and (iiic) all diligence in enforcement, collection or protection of, or realization upon, upon the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(jxii) These Subordination Provisions constitute a continuing offer from the Sponsor Company to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Master Framework Agreement (CHS Inc)
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer"HOLDER"), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7PARAGRAPH 9:
(a) No payment or other distribution of the Company's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under CLAUSE (o) of EXHIBIT IV to the Receivables Purchase Agreement or (ii) made pursuant to CLAUSE (a) or (b) of PARAGRAPH 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”"BANKRUPTCY PROCEEDINGS"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause CLAUSE (ab) shall be made directly to the Indenture Trustee Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that Purchaser (or the Indenture Trustee (Agent acting on behalf of the NoteholdersPurchaser's behalf), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and Exhibit B-4 records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Agent in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Agent (in the order of application set forth in SECTION 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under CLAUSE (o) of EXHIBIT IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer Exhibit B-5 unless Holder shall have received the prior written consent of the Indenture Trustee Agent and the Insurer Purchaser in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Agent and the Insurer Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Exhibit B-6 Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Purchaser covenants and agrees, and the Servicer------------------------ Seller, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities to the extent and in the manner set forth in the following clauses of this paragraph 7:
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorPurchaser, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Purchaser or any sale of all or substantially all of the assets of the Sponsor Purchaser except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Defaulta Rapid Amortization Event, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer Seller shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Seller would be entitled except for this clause (a) shall be made directly to the Indenture Trustee ------ (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer Seller hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer Seller or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Seller relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer Seller receives any payment or -------------------- other distribution of any kind or character from the Sponsor Purchaser or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer Seller to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the InsurerNoteholders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, Trustee or the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer Seller and the Noteholders and the InsurerNoteholders, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor Purchaser and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer Seller shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor Purchaser that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerSeller, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the InsurerNoteholders), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorPurchaser, its creditors (other than the Noteholders and the InsurerNoteholders) and the ServicerSeller, the Sponsor’s Purchaser's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Purchase Agreement or to affect the relative rights of the Servicer Seller and creditors of the Sponsor Purchaser (other than the Noteholders and the InsurerNoteholders).
(e) The Servicer Seller shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorPurchaser, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorPurchaser, unless, in the case of each of clauses (i) and (ii) above, the Servicer Seller shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.-------------------
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Headlands Mortgage Securities Inc)
Subordination Provisions. The Sponsor covenants and agrees, and the Servicer, by its acceptance of obligations under this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby Note are expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests, and any payment hereunder is pari passu in right of payment and performance to all other Junior Liabilities, to the extent and in the manner set forth in the following clauses of this paragraph 7Section 7 (the “Subordination Provisions”). Buyer covenants and agrees, and Company and any other assignee, transferee or pledgee of this Note (collectively, Company and any such other assignee, transferee or pledgee are called the “Holder”), by its acceptance of any sale, assignment, transfer or pledge of this Note, shall be deemed conclusively to have agreed for the benefit of the Senior Interest Holders, to the Subordination Provisions and the Company and each Holder by its acceptance of this Note shall be bound by such provisions:
(a) No payment or other distribution of Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is either (i) permitted under the Receivables Financing Agreement or (ii) made on or after the Final Maturity Date.
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement Buyer (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after (A) the occurrence of an the related Sale Termination Date, (B) the occurrence of the Termination Date or (C) the occurrence and during the continuation of any Event of Default, the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall first be indefeasibly paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Note. In order to implement the foregoing: (xA) all payments and distributions of any kind or character in respect of the Junior Liabilities this Note to which the Servicer Holder would be entitled except for this clause (aSection 7(b) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); (B) if the Holder shall timely file a claim or claims in any Bankruptcy Proceeding for any outstanding amount owed under this Note (and if the Holder does not timely do so, the Administrative Agent may), all payments and other distributions in respect thereof shall be made directly to the Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash and (yC) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Administrative Agent, in the name of the Servicer Holder or otherwise, may demand, xxx sue for, collect, collect and receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings Proceeding with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Note, in each case until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall have been indefeasibly paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer any Holder (including Company hereunder) and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the IndentureReceivables Financing Agreement; but as between the Sponsor Buyer and its creditorscreditors (other than the Senior Interest Holders), no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable Interests unless applied to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable Interests in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer)Receivables Financing Agreement.
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Oncor Electric Delivery Co LLC)
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerCompany, by its acceptance of this Note, likewise covenants and agrees, in each case, for the benefit of the other and for the benefit of the Senior Interest Holders, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests, and any payment hereunder is pari passu in right of payment and performance to all other Junior Liabilities, to the extent and in the manner set forth in the following clauses of this paragraph 7:Section 7 (the “Subordination Provisions”):
(a) No payment or other distribution of Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is made pursuant to Sections 4 or 6 of this Note;
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit Event of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”)involving Buyer, and (ii) on and after the occurrence of an Event of Defaultthe Purchase Termination Date, the Senior Liabilities Interests shall first be indefeasibly paid and performed in full and in cash before the Servicer Company shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Note. In order to implement the foregoing: (xA) all payments and distributions of any kind or character in respect of the Junior Liabilities this Note to which the Servicer Company would be entitled except for this clause (asubsection 7(b) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (yB) the Servicer Company hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Administrative Agent, in the name of the Servicer Company or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings proceeding with respect to any and all claims of the Servicer Company relating to the Junior Liabilitiesthis Note, in each case until the Senior Liabilities Interests shall have been indefeasibly paid and performed in full and in cash.
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Company receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Note, other than as expressly permitted by the Junior Liabilitiesterms of this Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall immediately be turned over in cash by the Servicer Company to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) until the Senior Interests have been indefeasibly paid and the Insurer) forthwithperformed in full and in cash. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Exhibit 2.3(c), Page 2 Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer any Originator (including Company hereunder) and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(cd) Upon the final indefeasible payment in full and in cash of all Senior LiabilitiesInterests, the Servicer Company shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities Interests until the Junior Liabilities are this Note is indefeasibly paid and performed in fullfull in cash.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerCompany, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these the Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerCompany, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities this Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Receivables Sale and Servicing Agreement or to affect the relative rights of the Servicer Company and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due Buyer (other than the Senior LiabilitiesInterest Holders), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Receivables Sale Agreement (C. H. Robinson Worldwide, Inc.)
Subordination Provisions. The Sponsor Borrower covenants and agrees, and the ServicerIntercompany Lender and any other assignee, transferee or pledgee of this Loan Agreement or any Subordinated Loans (collectively, the Intercompany Lender and any such other assignee, transferee or pledgee are called the “Holder”), by its acceptance of any sale, assignment, transfer or pledge of this NoteLoan Agreement or any Subordinated Loans, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities is the principal amount of and interest on the Subordinated Loans and any other payments owing under this Loan Agreement are hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 711:
(a) No payment or other distribution of the Borrower’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Loan Agreement or any Subordinated Loan except to the extent such payment or other distribution is either (i) permitted under Section 7.01(r) of the Receivables Purchase Agreement or (ii) made on or after the Final Payout Date;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBorrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Borrower or any sale of all or substantially all of the assets of the Sponsor except pursuant to Borrower other than as permitted by the Sale and Servicing Contribution Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Loan Agreement or any Subordinated Loan. In order to implement the foregoing, in the event of any Bankruptcy Proceedings relating to the Borrower: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Loan Agreement or any Subordinated Loan to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount owed under this Loan Agreement (and if the Holder does not promptly do so, the Administrative Agent may), and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersSecured Parties), may in the name of the Servicer Holder or otherwise, may demand, xxx sue for, collect, receive and receipt for any and all such payments or distributions, and file, file and prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Loan Agreement or any Subordinated Loan, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Borrower or from any other source whatsoever, in respect of this Loan Agreement or any Subordinated Loan, other than as expressly permitted by the Junior Liabilitiesterms of this Loan Agreement, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) forthwith (in each case no later than two (2) Business Days after receipt thereof). The Holder will mark its books and records so as clearly to indicate that this Loan Agreement and the Insurer) forthwithSubordinated Loans are subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this NoteLoan Agreement or any Subordinated Loan, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon this Loan Agreement and the Junior LiabilitiesSubordinated Loans, and any balance thereof shall, solely as between the Servicer Borrower and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 3.01(a) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by Interests or as otherwise required under Section 3.01(a) of the Indenture Trustee to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor Borrower and its creditorsthe Intercompany Lender, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Subordinated Loans;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Loan Agreement or any Subordinated Loan, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Loan Agreement or any Subordinated Loan) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 7.01(r) of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) Loan Agreement is intended to or shall impair, as between the SponsorBorrower, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBorrower’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on the Subordinated Loans as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Borrower (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBorrower, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Loan Agreement or any rights in respect hereof or (ii) convert the Junior Liabilities this Loan Agreement or any Subordinated Loan into an equity interest in the SponsorBorrower, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Lender, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Borrower until at least one year and one day shall have passed since the Termination Final Payout Date.;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Kinetik Holdings Inc.)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator and any other holder of this Company Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 8.01(n) of the Receivables Financing Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoingforegoing during any Bankruptcy Proceeding: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder 747538185 22708133 B-3 Purchase and Sale Agreement hereby irrevocably agrees that the Indenture Trustee Lenders (or the Administrator acting on behalf of the NoteholdersLenders’ behalf), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 4.01(a) of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 8.01(n) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect 747538185 22708133 B-4 Purchase and Sale Agreement hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee Administrator and the Insurer Lenders in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Lenders, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders Senior Interest 747538185 22708133 B-5 Purchase and the InsurerSale Agreement Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Worthington Industries Inc)
Subordination Provisions. The Sponsor AFC covenants and agrees, and the ServicerOriginator and any other holder of this Term Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Term Note, likewise covenants and agreesagrees on behalf of itself and any other holder of this Term Note, that the payment of all Junior Liabilities the principal amount of and interest on this Term Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7as follows:
(a) no payment or other distribution of AFC’s assets of any kind or character, whether in cash, securities or other rights or property, shall be made on account of this Term Note except to the extent such payment or other distribution is: (i) In permitted under the Receivables Purchase Agreement or (ii) made pursuant to paragraph 6(a) or (b) of this Term Note,
(b) in the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorAFC, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor AFC or any sale of all or substantially all of the assets of AFC other than as permitted by the Sponsor except pursuant to the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Term Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Term Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders), (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Term Note, and shall use commercially reasonable efforts to cause said claim(s) to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer); Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash, and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Purchasers (or the Administrative Agent acting on behalf of the NoteholdersPurchasers’ behalf), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Term Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.,
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerCompany, by its acceptance of this Note, likewise covenants and agrees, in each case, for the benefit of the other and for the benefit of the Senior Interest Holders, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests, to the extent and in the manner set forth in the following clauses of this paragraph 7:Section 7 (the “Subordination Provisions”):
(a) No payment or other distribution of Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is (i) expressly permitted under clause (p) of Exhibit IV to the Receivables Agreement and (ii) made pursuant to Section 4 or 6 of this Note.
(b) (i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization Event of Bankruptcy or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Defaultthe Facility Termination Date, the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall first be indefeasibly paid and performed in full and in cash before the Servicer Company shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Note. In order to implement the foregoing: (xA) all payments and distributions of any kind or character in respect of the Junior Liabilities this Note to which the Servicer Company would be entitled except for this clause (asubsection 7(b) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (yB) the Servicer Company hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Administrative Agent, in the name of the Servicer Company or otherwise, may demand, xxx sxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any proceeding related to such Event of Bankruptcy Proceedings with respect to any and all claims of the Servicer Company relating to the Junior Liabilitiesthis Note, in each case until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall have been indefeasibly paid and performed in full and in cash.
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Company receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Note, other than as expressly permitted by the Junior Liabilitiesterms of this Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall immediately be turned over by the Servicer Company to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) until the Senior Interests (other than unasserted contingent indemnification obligations) have been indefeasibly paid in full and the Insurer) forthwithin cash. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer Company and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the IndentureReceivables Agreement; but as between the Sponsor Buyer and its creditors, including the Senior Interest Holders, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(cd) Upon the final later of (x) the indefeasible payment in full and in cash of all Senior LiabilitiesInterests (other than unasserted contingent indemnification obligations) and (y) the Facility Termination Date, the Servicer Company shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities Interests until the Junior Liabilities are this Note is indefeasibly paid in fullfull and in cash.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerCompany, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerCompany, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities this Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale Purchase and Servicing Contribution Agreement or to affect the relative rights of the Servicer Company and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).
(ef) The Servicer Company shall not, until the later of (x) the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) have been finally indefeasibly paid and performed in full and in cashcash and (y) the Facility Termination Date, (i) cancel, waive, forgive, transfer or assignassign this Note or any Junior Liabilities, or commence legal proceedings to enforce or collectcollect this Note or any Junior Liabilities (whether principal, interest or any other obligation), or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (other than the Senior Liabilities)due, the any Junior Liabilities or any rights in respect hereof or thereof (ii) convert other than to the Junior Liabilities into an equity interest in the SponsorSenior Interests), unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Company shall have received the prior written consent of the Indenture Trustee and the Insurer in each caseAdministrative Agent.
(fg) The Servicer Company shall not, except without the advance written consent of the Indenture Trustee and the Insurer not commence, or join with any other Person in commencing, any proceedings related to an Event of Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day shall have passed since the later of (x) the Senior Interests (other than unasserted contingent indemnification obligations) shall have been indefeasibly paid in full and in cash and (y) the Facility Termination Date.
(gh) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Event of Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice or demand to the ServicerCompany, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify any Transaction Document in accordance with the Sale and Servicing Agreement terms thereof or waive compliance with any related documentof the provisions thereof; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ij) The Servicer Other than in connection with a Subordinated Note Financing (so long as each Subordinated Note Financier is then party to the No Petition Agreement), this Note may not be assigned, pledged or otherwise transferred to any party without the prior written consent of the Administrative Agent, and any such attempted transfer shall be void.
(k) Company hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, upon the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(jl) These Subordination Provisions constitute a continuing offer from the Sponsor Buyer to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Receivables Purchase Agreement (United Rentals North America Inc)
Subordination Provisions. (i) The Sponsor covenants and agreessubordination provisions contained in this Section 4 (the “Subordination Provisions”) are for the direct benefit of, and may be enforced by, the ServicerAgent and the Purchasers and/or any of their respective assignees (collectively, by its acceptance of the “Senior Claimants”) under the Purchase Agreement. Subject to the Subordination Provisions, Originator shall have the right to receive, and SPV shall make, any and all payments relating to the loans made under this Note, likewise covenants Subordinated Note and agrees, each other Subordinated Note (the “Junior Claims”). Originator hereby agrees that the payment of all Junior Liabilities is hereby expressly subordinated Originator shall be subordinate in right of payment to the prior payment and performance of the Senior Liabilities any indebtedness or obligation of SPV owing to the extent Agent or any Purchaser under that certain Receivables Purchase Agreement dated as of January 15, 2020, by and in among SPV, the manner set forth in the following clauses of this paragraph 7:
Servicer (i) In the event of any dissolutionas defined therein), winding up, liquidation, readjustment, reorganization or other similar event relating various “Purchasers” from time to the Sponsor, whether voluntary or involuntary, partial or completetime party thereto, and whether in bankruptcyMUFG Bank, insolvencyLtd., receivership as the “Agent” (as amended, restated, supplemented or other similar proceedingsotherwise modified from time to time, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy ProceedingsPurchase Agreement”), and (ii) . Until the date on and after which all “Capital” outstanding under the occurrence of an Event of Default, the Senior Liabilities shall first be paid and performed Purchase Agreement has been repaid in full and in cash before all other obligations of SPV and/or the Servicer thereunder and under the “Fee Letter” referenced therein (all such obligations, collectively, the “Senior Claim”) have been indefeasibly paid and satisfied in full, Originator shall be entitled to receive and to retain not institute against SPV any payment or distribution in respect proceeding of the Junior Liabilities. In order to implement the foregoing: (xtype described in Section 5.1(d) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, Sale Agreement unless and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of Collection Date has occurred. Should any of the events described in clause (a)(i) payment, distribution or (ii), in the event that the Servicer receives any payment security or proceeds or other distribution of any kind or character from the Sponsor SPV or from any other source whatsoever, in respect of Junior Claims, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, be received by Originator in violation of this Section 4, Originator agrees that such payment or other distribution shall be received in trust for the Indenture Trustee Senior Claimants and shall immediately be turned over in cash by the Servicer Originator to the Indenture Trustee Agent (for the benefit of the Noteholders, Senior Claimants) until the Senior Claim have been indefeasibly paid and the Insurer) forthwithperformed in full and in cash. All payments and distributions received by the Indenture Trustee Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Agent (for the benefit of the Noteholders and the InsurerSenior Claimants) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Agent or the Insurer Senior Claimants in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior LiabilitiesClaims, and second, any balance thereof shall, solely as between the Servicer any originator (including Originator hereunder) and the Noteholders and the InsurerSenior Claimants, be applied by the Indenture Trustee Agent toward the payment of the Senior Liabilities Claim in a manner determined by the Indenture Trustee Agent to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor SPV and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesClaims.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Receivables Sale Agreement (Patterson Companies, Inc.)
Subordination Provisions. The Sponsor covenants and agrees, and the Servicer, by its acceptance of obligations under this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby Note are expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests, and any payment hereunder is pari passu in right of payment and performance to all other Junior Liabilities, to the extent and in the manner set forth in the following clauses of this paragraph 7Section 7 (the “Subordination Provisions”). Buyer covenants and agrees, and Company and any other assignee, transferee or pledgee of this Note (collectively, Company and any such other assignee, transferee or pledgee are called the “Holder”), by its acceptance of any sale, assignment, transfer or pledge of this Note, shall be deemed conclusively to have agreed for the benefit of the Senior Interest Holders, to the Subordination Provisions and the Company and each Holder by its acceptance of this Note shall be bound by such provisions:
(a) No payment or other distribution of Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is either (i) permitted under the Receivables Financing Agreement or (ii) made on or after the Final Maturity Date.
(b) (i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement Buyer (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Defaultthe related Sale Termination Date, the Senior Liabilities Interests shall first be indefeasibly paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Note. In order to implement the foregoing: (xA) all payments and distributions of any kind or character in respect of the Junior Liabilities this Note to which the Servicer Holder would be entitled except for this clause (asubsection 7(b) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); (B) if the Holder shall timely file a claim or claims in any Bankruptcy Proceeding for any outstanding amount owed under this Note (and if the Holder does not timely do so, the Administrative Agent may), all payments and other distributions in respect thereof shall be made directly to the Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash and (yC) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Administrative Agent, in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings Proceeding with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Note, in each case until the Senior Liabilities Interests shall have been indefeasibly paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer any Holder (including Company hereunder) and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the IndentureReceivables Financing Agreement; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(c) In the event that the Holder receives any payment or other distribution of any kind or character from Buyer or from any other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received in trust for the Senior Interest Holders and shall immediately be turned over in cash by the Holder to Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests have been indefeasibly paid and performed in full and in cash.
(d) Upon the final indefeasible payment and performance in full and in cash of all Senior LiabilitiesInterests, the Servicer Holder shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities Interests until the Junior Liabilities are this Note is indefeasibly paid and performed in fullfull and in cash.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these the Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities this Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Purchase and Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally indefeasibly paid and performed in full and in cash, : (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Note, or any rights in respect hereof thereof or (ii) convert the Junior Liabilities this Note into an equity interest in the SponsorBuyer, unless, in the case of each of clauses (i) and (ii) above, the Servicer Holder shall have received the prior written consent of the Indenture Trustee and the Insurer in each caseAdministrative Agent.
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer not commence, or join with any other Person in commencing, any Bankruptcy Proceedings Proceeding with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination DateSenior Interests shall have been indefeasibly paid and performed in full and in cash.
(gh) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings Proceeding or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice or demand to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure securing any of the Senior LiabilitiesInterests pursuant to, and to the extent set forth in, the Transaction Documents; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests in accordance with the Transaction Documents; (iv) amend, supplement, amend and restate, or otherwise modify any Transaction Document in accordance with the Sale and Servicing Agreement or any related documentterms thereof; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ij) The Servicer Holder agrees that this Note shall be pari passu with all other Junior Liabilities.
(k) The Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, upon the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(jl) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor.
(m) These Subordination Provisions constitute a continuing offer from the Sponsor Buyer to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor covenants and (a) Except as otherwise specified, the Company agrees, and each Holder of the Servicer, Notes by its acceptance of this Note, likewise covenants and accepting the Notes agrees, that the payment of all Junior Liabilities indebtedness evidenced by the Notes is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities payment, to the extent and in the manner set forth provided in this Section 4.02, to the following clauses prior payment in full of this paragraph 7:all Senior Indebtedness and that the subordination is for the benefit of the holders of Senior Indebtedness.
(ib) In the event of (a) any dissolutioninsolvency or bankruptcy case or proceeding, winding upor any receivership, liquidation, readjustment, reorganization or other similar event relating case or proceeding in connection therewith, relative to the SponsorCompany or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary, partial or complete, involuntary and whether in or not involving insolvency or bankruptcy, insolvency, receivership or other similar proceedings, or upon an (c) any assignment for the benefit of creditors, creditors or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement Company (such proceedings being herein collectively called “Bankruptcy Proceedings”(a) through (c), and an “Insolvency Event”):
(iii) on and after the occurrence holders of an Event of Default, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer Indebtedness shall be entitled to receive payment in full in cash of the principal thereof, and premium, if any, additional amounts owing in respect thereof, if any, and interest thereon (including interest accruing after the commencement of any such proceeding) to retain the date of payment on the Senior Indebtedness before Holders shall be entitled to receive any payment of principal of or interest on Notes;
(ii) until the Senior Indebtedness is paid in full in cash, any indebtedness to which Holders of the Notes or the Trustee would be entitled (except for the fees and expenses due and owing to Trustee) but for this Section 4.02 shall be made to holders of Senior Indebtedness as their interests may appear for the application to the payment thereof, except that Holders of the Notes may receive securities that are subordinated to Senior Indebtedness to at least the same extent as the Notes; and
(iii) the Trustee is entitled to conclusively rely upon an order or decree of a court of competent jurisdiction or a certificate of a bankruptcy trustee or other similar official for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of Senior Indebtedness and other Company debt, the amount thereof or payable thereon and all other pertinent facts relating to the Trustee’s obligations under this Section 4.02.
(c) In the event that, notwithstanding the foregoing provisions of this Section 4.02, the Trustee or the Holder of any of the Notes shall have received any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, including by way of set-off or any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Notes, before all Senior Indebtedness is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder of the Notes, in writing by the Company then and in such event such payment or distribution shall be paid over or delivered forthwith to the Trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. Any taxes that have been withheld or deducted from any payment or distribution in respect of the Junior Liabilities. In order Notes, or any taxes that ought to implement the foregoing: (x) all payments and distributions of have been withheld or deducted from any kind such payment or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) shall be made directly distribution that have been remitted to the Indenture Trustee (for the benefit of the Noteholdersrelevant taxing authority, and the Insurer); and (y) the Servicer hereby irrevocably agrees shall not be considered to be an amount that the Indenture Trustee (on behalf of or the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence Holder of any of the events described in clause (a)(i) or (ii), in the event that the Servicer Notes receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect purposes of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in fullSection.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assignThe Company may not pay principal of, or commence legal proceedings to enforce premium, if any or collectinterest on the Notes and may not acquire any Notes for cash or property, other than capital stock, of the Company if:
(A) a default (x) in the payment of principal, premium, if any, or subordinate to interest, on any obligation Senior Indebtedness beyond any applicable grace period with respect thereto occurs and is continuing or (y) arising from an Insolvency Event of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unlessCompany occurs and, in the case of each of clauses both (ix) and (iiy), holders of the Senior Indebtedness have accelerated the maturity of such Senior Indebtedness due to such event of default;
(B) abovea default on Senior Indebtedness other than those referenced in clause (A) above occurs and is continuing and the holders of such Senior Indebtedness (or a representative on their behalf) accelerate the maturity of such Senior Indebtedness; provided, that a holder, or a representative of the Servicer holders, of such Senior Indebtedness shall have received the prior provided written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of Company that the following actions: retain or obtain an interest in any property to secure any holders of the Senior LiabilitiesIndebtedness have accelerated the maturity of such Senior Indebtedness due to such event of default; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.or
(iC) The Servicer hereby waives: (i) notice a default under any Senior Indebtedness is the subject of acceptance of these Subordination Provisions by any of judicial proceedings or the Noteholders and the Insurer, (ii) Trustee receives a notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer default from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such PersonsCompany.
Appears in 1 contract
Samples: First Supplemental Indenture (TriState Capital Holdings, Inc.)
Subordination Provisions. The Sponsor AAR Receivables Corporation II covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer“Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(ia) No payment or other distribution of AAR Receivables Corporation II’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorAAR Receivables Corporation II, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor AAR Receivables Corporation II or any sale of all or substantially all of the assets of AAR Receivables Corporation II other than as permitted by the Sponsor except pursuant to the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Purchasers (or the Agent acting on behalf of the NoteholdersPurchasers’ behalf), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor AAR Receivables Corporation II or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Agent in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Agent (in the order of application set forth in Section 1.4(d)(ii) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor AAR Receivables Corporation II and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under this Company Note;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorAAR Receivables Corporation II, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorAAR Receivables Corporation II’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor AAR Receivables Corporation II (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorAAR Receivables Corporation II, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorAAR Receivables Corporation II, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee Agent and the Insurer Purchasers in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Agent and the Insurer Purchasers, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor AAR Receivables Corporation II until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.;
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerHolder, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7paragraph:
(ia) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of DefaultProceeding, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Holder shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Holder would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of itself and the NoteholdersInvestor Certificateholders), and (ii) if a Bankruptcy Proceeding has been commenced, the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Holder shall promptly file a claim or claims, in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent form required in any such Bankruptcy Proceedings with respect to any and all claims Proceedings, for the full outstanding amount of the Servicer relating to the Junior Liabilities, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in each case respect thereof to be made directly to the Trustee (for the benefit of itself and the Investor Certificateholders) until the Senior Liabilities Interests shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect payment of the Junior Liabilities, after the commencement of any Bankruptcy Proceeding, such payment or other distribution shall be received in trust for the Indenture Trustee and the Investor Certificateholders and shall be turned over by the Servicer Holder to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final indefeasible payment in full and in cash of all Senior LiabilitiesInterests, the Servicer Holder shall be subrogated to the rights of the Indenture Trustee and the Investor Certificateholders to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities Interests until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Investor Certificateholders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders Trustee and the InsurerInvestor Certificateholders) and the ServicerHolder, the Sponsor’s Buyer's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders Trustee and the InsurerInvestor Certificateholders).
(e) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of Buyer (other than to the SponsorSenior Interests), howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (other than the Senior Liabilities)due, the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorBuyer, unless, in the case of each of clauses (i) and (ii) above), the Servicer Holder shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee and the Insurer Trustee, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since after the Termination DateSenior Interests shall have been finally paid and performed in full and in cash; provided, however, that the Holder shall at all times have the right to file any claim in or otherwise take any action with respect to any insolvency proceeding instituted against Buyer by any Person other than the Holder or any other Big Flower Person (provided that no such action may be taken by the Holder until such proceeding has continued undismissed, unstayed and in effect for a period of 10 days).
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Certificateholder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Each of the Trustee (on behalf of Noteholders and the Insurer) Investor Certificateholders may, from time to time, with the consent of the Insurer in its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior Liabilities; Interests, (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; Interests, (iii) extend or renew for one or more periods (whether or not longer than the original period), alter alter, increase or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; Interests, (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; Transaction Document to which it is a party, and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by the Trustee or any of the Noteholders and the InsurerInvestor Certificateholders, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; Interests, and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor Buyer to all Persons who become the holders of, or who continue to hold, Senior Liabilities; Interests, and these Subordination Provisions are made for the benefit of the Noteholders Trustee and the InsurerInvestor Certificateholders, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Big Flower Press Holdings Inc)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator and any other holder of this Company Note (collectively, the Originator and any such other holder are called the "Holder"), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under paragraph 1(n) of Exhibit IV of the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoingforegoing during any Bankruptcy Proceeding: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Issuer (or the Administrator acting on behalf of the NoteholdersIssuer's behalf), in the name of the Servicer Holder or otherwise, may demand, xxx sue for, collect, receive and receipt for any and all such payments or xx distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will mark its books and records so as clearly to indicate that this Compaxx Xote is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d)(ii) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under paragraph 1(n) of Exhibit IV of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, Exhibit B-4 arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee Administrator and the Insurer Issuer in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Issuer, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Purchaser covenants and agrees, and the ServicerSeller, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities to the extent and in the manner set forth in the following clauses of this paragraph 7:
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorPurchaser, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Purchaser or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement Purchaser (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence and continuation of an Event of DefaultDefault under the Indenture, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer Seller shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Seller would be entitled except for this clause (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the InsurerBondholders); and (y) the Servicer Seller hereby irrevocably agrees that the Indenture Trustee (on behalf of the NoteholdersBondholders), in the name of the Servicer Seller or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Seller relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer Seller receives any payment or other distribution of any kind or character from the Sponsor Purchaser or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer Seller to the Indenture Trustee (for the benefit of the Noteholders, and the InsurerBondholders) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the InsurerBondholders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Trustee or the Insurer Bondholders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer Seller and the Noteholders and the InsurerBondholders, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor Purchaser and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer Seller shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor Purchaser that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerSeller, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the InsurerBondholders), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorPurchaser, its creditors (other than the Noteholders and the InsurerBondholders) and the ServicerSeller, the Sponsor’s Purchaser's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Purchase Agreement or to affect the relative rights of the Servicer Seller and creditors of the Sponsor Purchaser (other than the Noteholders and the InsurerBondholders).
(e) The Servicer Seller shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorPurchaser, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorPurchaser, unless, in the case of each of clauses (i) and (ii) above, the Servicer Seller shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer Seller shall not, except without the advance written consent of the Indenture Trustee and the Insurer Trustee, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Purchaser until at least one year and one day have passed since the Termination DateStated Maturity.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer Bondholders (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the InsurerBondholders) may, from time to time, with the consent of the Insurer without notice to the ServicerSeller, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement Agreements or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer Seller hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the InsurerBondholders, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor Purchaser to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerBondholders, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (American Residential Eagle Inc)
Subordination Provisions. The Sponsor Initial Purchaser covenants and agrees, and the ServicerOriginator, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph Section 7:
(a) No payment or other distribution of the Initial Purchaser's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is made pursuant to Sections 4 or 6 of this Note;
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”)Insolvency Proceeding, and (ii) on and after the occurrence of an Event of Defaultthe Purchase and Sale Termination Date, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Originator would be entitled except for this clause (a) subsection shall be made directly to the Indenture Trustee Senior Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (y) the Servicer Originator hereby irrevocably agrees that the Indenture Trustee Issuer (or the Senior Agent acting on behalf of the Noteholdersits behalf), in the name of the Servicer Originator or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings Insolvency Proceeding with respect to any and all claims of the Servicer Originator relating to the Junior Liabilities, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Originator receives any payment or other distribution of any kind or character from the Sponsor Initial Purchaser or from any other source whatsoever, in respect of the Junior Liabilities, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Originator to the Indenture Trustee Senior Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. All payments and distributions received by the Indenture Trustee Senior Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Senior Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including including, without limitation, reasonable attorneys’ ' fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Senior Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Senior Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Senior Agent to be in accordance with the IndentureReceivables Purchase Agreement; but as between the Sponsor Initial Purchaser and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(cd) Upon the final payment in full and in cash of all Senior LiabilitiesInterests, the Servicer Originator shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor Initial Purchaser that are applicable to the Senior Liabilities Interests until the Junior Liabilities are paid in full.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerOriginator, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these the Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorInitial Purchaser, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerOriginator, the Sponsor’s Initial Purchaser's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Purchase and Sale and Servicing Agreement or to affect the relative rights of the Servicer Originator and creditors of the Sponsor Initial Purchaser (other than the Noteholders and the InsurerSenior Interest Holders).
(ef) The Servicer Originator shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorInitial Purchaser, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities Liabilities, or any rights in respect hereof thereof or (ii) convert the Junior Liabilities into an equity interest in the SponsorInitial Purchaser, unless, in the case of each of clauses (i) and (ii) above, the Servicer Originator shall have received the prior written consent of the Indenture Trustee and the Insurer Administrator in each case.
(fg) The Servicer Originator shall not, except without the advance written consent of the Indenture Trustee and the Insurer Administrator, commence, or join with any other Person in commencing, any Bankruptcy Insolvency Proceedings with respect to the Sponsor Initial Purchaser until at least one year and one day shall have passed since the Termination DateSenior Interests shall have been finally paid and performed in full and in cash.
(gh) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Insolvency Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerOriginator, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ij) The Servicer Originator hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, upon the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(jk) These Subordination Provisions constitute a continuing offer from the Sponsor Initial Purchaser to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Owens & Minor Inc/Va/)
Subordination Provisions. (a) The Sponsor covenants Senior Management Team Note ("Subordinated Obligations") shall be subordinate and agrees, and the Servicer, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated junior in right of payment and collection to the prior indefeasible payment in full in cash to the Holders of Senior Indebtedness of the principal, interest (including interest accruing after the bankruptcy of the Company), fees and performance all other amounts owing on the Intelefilm Note and Xxxx Xxxxx Note ("Senior Obligations"), upon the terms and to the extent set forth herein. Except as otherwise provided in this Agreement, until such time that all amounts due in respect of the Senior Liabilities Obligations have been indefeasibly paid in full in cash, the Company shall not make, and the Senior Management Team ("Junior Creditor") shall not receive, accept or retain, directly or indirectly, any payment in respect of the Subordinated Obligations or any security therefor, other than scheduled payments of interest. Notwithstanding the foregoing, provided that no Event of Default shall have occurred or would occur after giving effect thereto, the Company may make and the Junior Creditor may receive the payments in accordance with the terms of the Senior Management Team Note. Following the occurrence of an event of default, the Company shall not be permitted to make and the Junior Creditor shall not be permitted to receive any further payments with respect to the extent and in Subordinated Obligations without the manner set forth in express written consent of the following clauses holders of this paragraph 7:Senior Obligations.
(ib) The Junior Creditor does hereby collaterally transfer and assign all right, title and interest in and to, and grant a security interest in, the Subordinated Obligations to Xxxx Xxxxx and Intelefilm (the "Senior Creditor"). The Junior Creditor authorizes the Senior Creditor to file a financing statement, and any amendments thereto, with respect to any Subordinated Obligations, if the Senior Creditor deems such a filing is advisable to protect the rights granted to it hereunder.
(c) In the event that the Junior Creditor obtains any payment from or on behalf of the Company with respect to the Subordinated Obligations which it is not expressly permitted to receive pursuant to Section 3.6(a) hereof, the Junior Creditor will hold such proceeds in trust for the benefit of the Senior Creditor, and immediately deliver all such proceeds to the Senior Creditor without counterclaim, deferral, deduction or setoff.
(d) In the event of any dissolutionlitigation, winding upbankruptcy, collection or any other similar proceeding with respect to the Company, the priorities set forth in this Agreement shall continue to be operative and the provisions of this Agreement shall continue to be applicable in any such proceeding. Upon any distribution of the assets of the Company, or readjustment of the indebtedness of the Company, whether by reason of reorganization, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvencydissolution, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, creditors or any other marshalling action or proceeding involving the readjustment of the assets and liabilities of the Sponsor any or any sale of all or substantially all of the Subordinated Obligations, or the application of assets of the Sponsor except pursuant Company to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”)payment or liquidation thereof, and (ii) on and after the occurrence of an Event of Defaulteither in whole or in part, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer Creditor shall be entitled to receive payment in full in cash of all of the Senior Obligations prior to the payment of all or any of the Subordinated Obligations, and in order to retain enable the Senior Creditor to assert and enforce its rights hereunder in any payment such action or distribution proceeding, or upon the happening of any such event, the Senior Creditor is hereby irrevocably authorized and empowered, in respect the Senior Creditor's sole discretion to make and present, for and on behalf of the Junior Liabilities. In order to implement Creditor, such proofs of claims against the foregoing: (x) Company on account of all payments and distributions of or any kind or character in respect of the Junior Liabilities Subordinated Obligations and to which vote the Servicer would be entitled except for this clause (a) shall be made directly full amount of such claims in any such proceeding, in each case, as the Senior Creditor may deem advisable, and to receive and to apply the same on account of the Senior Obligations in such order and priority as the Senior Creditor may determine. Upon any distribution of assets to the Indenture Trustee (Junior Creditor in violation of this Section 3.6(d), the Junior Creditor shall hold such distribution in trust for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee Creditor and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no immediately deliver such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerCreditor without counterclaim, on the one handdeferral, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions deduction or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer)setoff.
(e) The Servicer Xxxx Xxxxx Note shall notbe subordinate and junior in right of payment and collection to the prior indefeasible payment in full in cash to Intelefilm of the principal, interest (including interest accruing after the bankruptcy of the Company), fees and all other amounts owing on the Intelefilm Note, upon the terms and to the extent set forth herein. Except as otherwise provided in this Agreement, until such time that all amounts due in respect of the Senior Liabilities Intelefilm Note have been finally indefeasibly paid and performed in full and in cash, (i) cancelthe Company shall not make, waiveand Xxxx Xxxxx shall not receive, forgiveaccept or retain, transfer directly or assignindirectly, or commence legal proceedings to enforce or collect, or subordinate to any obligation payment in respect of the SponsorXxxx Xxxxx Note or any security therefor. Notwithstanding the foregoing, howsoever created, arising provided that no event of default shall have occurred or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities)would occur after giving effect thereto, the Junior Liabilities or any rights Company may make and Xxxx Xxxxx may receive the payments in respect hereof or (ii) convert accordance with the Junior Liabilities into terms of the Xxxx Xxxxx Note. Following the occurrence of an equity interest in the Sponsor, unless, in the case event of each of clauses (i) and (ii) abovedefault, the Servicer Company shall have received not be permitted to make and Xxxx Xxxxx shall not be permitted to receive any further payments with respect to the prior Xxxx Xxxxx Note without the express written consent of the Indenture Trustee and the Insurer in each caseIntelefilm.
(f) The Servicer shall not, except without In the advance written consent event that Xxxx Xxxxx obtains any payment from or on behalf of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings Company with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(gXxxx Xxxxx Note which it is not expressly permitted to receive pursuant to Section 3.6(e) Ifhereof, at any time, any of the payment (Xxxx Xxxxx will hold such proceeds in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made trust for the benefit of the Noteholders and the InsurerIntelefilm, and the Indenture Trustee may proceed immediately deliver all such proceeds to enforce such provisions on behalf of each of such PersonsIntelefilm without counterclaim, deferral, deduction or setoff.
Appears in 1 contract
Samples: Subordination and Intercreditor Agreement (Intelefilm Corp)
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) either permitted under the Receivables Financing Agreement or deemed made in accordance therewith or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersLenders), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) upon reasonably detailed request therefor from the Person entitled thereto. The Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the Insurer) forthwithterms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 3.01(a) of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 7.01(r) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Lender, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (PRA Health Sciences, Inc.)
Subordination Provisions. The Sponsor MRC covenants and agrees, and the ServicerSeller, by its acceptance of this Term Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Term Note, that the payment of all Junior Liabilities the principal amount of and interest on this Term Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph Section 7:
(a) No payment or other distribution of MRC's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Term Note except to the extent such payment or other distribution is (i) permitted under Section 5.03(k) of the Purchase and Bank Agreements or (ii) made pursuant to Section 4 of this Term Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorMRC, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement MRC (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Seller shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments this Term Note; and distributions in any event any payment or distribution of any kind or character (whether in cash or other property) in respect of the Junior Liabilities this Term Note to which the Servicer Seller would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Agent (for the benefit of the NoteholdersSenior Interest Holders);
(c) Until such time as the Senior Interests shall have been paid in full, if any Bankruptcy Proceeding is commenced by or against MRC, the Agent is hereby irrevocably. authorized and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (empowered, in its own name, on behalf of the Noteholders)Senior Interest Holders, or in the name of the Servicer Seller, (i) to collect and receive every payment or otherwisedistribution referred to in clause (b) above and give acquittance therefor and (ii) to file claims and proofs of claim and take such other action (including, may demandwithout limitation, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings voting with respect to any and all claims of the Servicer Seller relating to this Term Note) as it may deem necessary or advisable for the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence exercise or enforcement of any of the events described rights or interests of the Senior Interest Holders; and Seller agrees to take such action as the Agent may reasonably request to collect every payment or distribution to which it is entitled with respect to this Term Note for the account of the Senior Interest Holders and to file appropriate claims and proofs of claim in clause respect thereof;
(a)(id) or (ii), in the event that the Servicer If Seller receives any payment or other distribution of any kind or character from the Sponsor MRC or from any other source whatsoever, in respect of this Term Note, other than as expressly permitted by the Junior Liabilitiesterms of this Term Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Seller to the Indenture Trustee 230 Agent (for the benefit of the Noteholders, and Senior Interest Holders) forthwith in the Insurersame form as so received (with any necessary endorsement);
(e) forthwith. All Notwithstanding any payments and or distributions received by the Indenture Trustee Senior Interest Holders in respect of this Term Note, while any Bankruptcy Proceedings are pending Seller shall not be subrogated to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment then existing rights of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions Interests Holders in respect of the Senior Liabilities.
Interests until the Senior Interests have been paid in full. If no Bankruptcy Proceedings are pending, Seller shall only be entitled to exercise any subrogation rights that it may acquire (c) Upon the final by reason of a payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Term Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 5.03(k) of the Purchase and Bank Agreements;
(df) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerSeller, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Term Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorMRC, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerSeller, the Sponsor’s MRC's obligation, which is unconditional and absolute, to pay Seller the Junior Liabilities as principal of and when the same shall become due and payable interest on this Term Note in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Seller and creditors of the Sponsor MRC (other than the Noteholders and the InsurerSenior Interest Holders).;
(eg) The Servicer Seller shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cashfull, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorMRC, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities)Interests, the Junior Liabilities this Term Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Term Note into an equity interest in the SponsorMRC, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Seller shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Agent;
(fh) The Servicer Seller shall notnot institute against MRC any Bankruptcy Proceeding so long as any Commercial Paper Notes issued by the Purchaser shall be out g or there shall not have elapsed one year plus one day since the last day on which any such Commercial Paper Notes shall have been outstanding. Seller hereby agrees not to cause MRC to file a voluntary petition under the Federal Bankruptcy Code or any other bankruptcy or insolvency laws unless, except without and only unless, such filing has been authorized in accordance with MRC's constituent documents, and by the advance written consent Board of Directors of MRC which (as defined in such constituent documents) have taken into consideration the interests of the Indenture Trustee and creditors of MRC, rather than solely the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to interests of the Sponsor until at least one year and one day have passed since the Termination Date.shareholders of MRC;
(gi) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hj) The Indenture Trustee (on behalf of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer without notice to the ServicerSeller, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: actions (assuming that such Senior Interest Holder is entitled to take any of the following actions pursuant to the Purchase Document (other than this Term Note) or pursuant to applicable law): (i) retain or obtain an interest in any property to secure any of the Senior Liabilities231 Interests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period)renew, alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentPurchase Document; and (v) release its any security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.Interests;
(ik) The Servicer Seller hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment nonpayment or non-performance of all or any of the Senior LiabilitiesInterests Holders; and (iii) all diligence in enforcement, collection or protection of, or realization upon, upon the interests of the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(j1) These Subordination Provisions constitute a continuing offer Each of the Senior Interest Holders may, from time to time, on the Sponsor terms and subject to the conditions set forth in the Purchase Documents to which such Senior Interest Holders are party, but without notice to Seller, assign or transfer any or all Persons who become of the holders ofSenior Interests, or who continue any interest therein; and, notwithstanding any such assignment or transfer, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to hold, Senior Liabilities; and the benefits of these Subordination Provisions are made for to the benefit of same extent as if such assignee or transferee were the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.assignor or transferor; and
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Maxtor Corp)
Subordination Provisions. The Sponsor Initial Purchaser covenants and agrees, and the Servicer[name of Originator], by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph Section 7:
(a) No payment or other distribution of the Initial Purchaser's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is permitted under (i) clause (m) of Exhibit IV to the Receivables Purchase Agreement and the Parallel Purchase Agreement and (ii) Section 4 or Section 6 of this Note;
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating Insolvency Proceeding with respect to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”)Initial Purchaser, and (ii) on and after the occurrence of an Event of Defaultthe Purchase and Sale Termination Date, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer each Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilities. In order to implement the foregoing: (x) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer Originator would be entitled except for this clause (asubsection 7(b) shall be made directly to the Indenture Trustee Senior Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (y) the Servicer Originator hereby irrevocably agrees that the Indenture Trustee Issuer or the Parallel Purchasers (or the Senior Agent acting on behalf of the Noteholderstheir behalf), in the name of the Servicer Originator or otherwise, may demand, xxx sue for, collect, receive and receipt for any and all such xxxh payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings Insolvency Proceeding with respect to any and all claims of the Servicer Originator relating to the Junior Liabilities, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Originator receives any payment or other distribution of any kind or character from the Sponsor Initial Purchaser or from any other source whatsoever, whatsoever in respect of the Junior Liabilities, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Originator to the Indenture Trustee Senior Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. All payments and distributions received by the Indenture Trustee Senior Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Senior Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including including, without limitation, reasonable attorneys’ ' fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Senior Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Senior Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Senior Agent to be in accordance with the IndentureReceivables Purchase Agreement or the Parallel Purchase Agreement, as applicable; but as between the Sponsor Initial Purchaser and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(cd) Upon the final payment in full and in cash of all Senior LiabilitiesInterests, the Servicer Originator shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor Initial Purchaser that are applicable to the Senior Liabilities Interests until the Junior Liabilities are paid in full.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerOriginator, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these the Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorInitial Purchaser, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerOriginator, the Sponsor’s Initial Purchaser's obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Purchase and Sale and Servicing Agreement or to affect the relative rights of the Servicer such Originator and creditors of the Sponsor Initial Purchaser (other than the Noteholders and the InsurerSenior Interest Holders).
(ef) The Servicer Originator shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to to, any obligation of the SponsorInitial Purchaser, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due due, (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof as permitted by this Note) or (ii) convert the Junior Liabilities into an equity interest in the SponsorInitial Purchaser, unless, in the case of each of clauses (i) and (ii) above, the Servicer Originator shall have received the prior written consent of the Indenture Trustee Administrator and the Insurer Parallel Asset Purchase Administrator in each case.
(fg) The Servicer Originator shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Parallel Asset Purchase Administrator, commence, or join with any other Person in commencing, any Bankruptcy Insolvency Proceedings with respect to the Sponsor Initial Purchaser until at least one year and one day shall have passed since the Termination DateSenior Interests shall have been finally paid and performed in full and in cash.
(gh) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Insolvency Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerOriginator, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ij) The Servicer Originator hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, upon the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(jk) These Subordination Provisions constitute a continuing offer from the Sponsor Initial Purchaser to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Senior Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerCompany, by its acceptance of this Note, likewise covenants and agrees, in each case, for the benefit of the other and for the benefit of the Senior Interest Holders, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7:Section 7 (the “Subordination Provisions”):
(a) No payment or other distribution of Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is (i) permitted under the Receivables Purchase Agreement or (ii) made pursuant to Sections 4 or 6 of this Note.
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit Event of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”)involving Buyer, and (ii) on and after the occurrence of an Event of Defaultthe Purchase and Sale Termination Date, the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall first be paid and performed in full and in cash before the Servicer Company shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Note. In order to implement the foregoing: (xA) all payments and distributions of any kind or character in respect of the Junior Liabilities this Note to which the Servicer Company would be entitled except for this clause (asubsection 7(b) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (yB) the Servicer Company hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Administrative Agent, in the name of the Servicer Company or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any proceeding related to such Event of Bankruptcy Proceedings with respect to any and all claims of the Servicer Company relating to the Junior Liabilitiesthis Note, in each case until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall have been paid and performed in full and in cash.
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Company receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Note, other than as expressly permitted by the Junior Liabilitiesterms of this Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall immediately be turned over in cash by the Servicer Company to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) until the Senior Interests (other than unasserted contingent indemnification obligations) have been paid in full and the Insurer) forthwithin cash. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer Company and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesReceivables Purchase Agreement.
(cd) Upon the final payment in full and in cash of all Senior LiabilitiesInterests (other than unasserted contingent indemnification obligations), the Servicer Company shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities Interests until the Junior Liabilities are this Note is paid in fullfull and in cash.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerCompany, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerCompany, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities this Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Purchase and Sale and Servicing Agreement or to affect the relative rights of the Servicer Company and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).
(ef) The Servicer Company shall not, until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) have been finally paid and performed in full and in cash, : (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Note, or any rights in respect hereof thereof or (ii) convert the Junior Liabilities this Note into an equity interest in the SponsorBuyer, unless, in the case of each of clauses (i) and (ii) above, the Servicer Company shall have received the prior written consent of the Indenture Trustee and the Insurer in each caseAdministrative Agent.
(fg) The Servicer Company shall not, except without the advance written consent of the Indenture Trustee and the Insurer not commence, or join with any other Person in commencing, any proceedings related to an Event of Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination DateSenior Interests (other than unasserted contingent indemnification obligations) shall have been paid in full and in cash.
(gh) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Event of Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice or demand to the ServicerCompany, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure securing any of the Senior LiabilitiesInterests pursuant to, and to the extent set forth in, the Transaction Documents; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests in accordance with the Transaction Documents; (iv) amend, supplement, amend and restate, or otherwise modify any Transaction Document in accordance with the Sale and Servicing Agreement or any related documentterms thereof; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(ij) The Servicer Company hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, upon the Senior LiabilitiesInterests, or any thereof, or any security therefor.
(jk) These Subordination Provisions constitute a continuing offer from the Sponsor Buyer to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator and any other holder of this Company Note (collectively, the Originator and any such other holder are called the "Holder"), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under paragraph 1(m) of Exhibit IV of the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoingforegoing during any Bankruptcy Proceeding: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Purchasers (or the Administrator acting on behalf of the NoteholdersPurchasers' behalf), in the name of the Servicer Holder or otherwise, may demand, xxx sue for, collect, receive and receipt for any and all such payments or distributionsxxstributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will mark its books and records so as clearly to indicate that this Company Xxxe is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d)(ii) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under paragraph 1(m) of Exhibit IV of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising Exhibit B-4 or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee Administrator and the Insurer Purchasers in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Purchasers, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (York International Corp /De/)
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under Section 8.01(r) of the Receivables Financing Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersLenders), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, collect and receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 4.01(a) of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 8.01(r) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Lender, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Subordination Provisions. The Sponsor Company covenants and agrees, and Originator and any other holder of this Company Note (collectively, Originator and any such other holder are called the Servicer“Holder”), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrator (acting on behalf of the NoteholdersPurchasers), in the name of the Servicer Holder or otherwise, may demand, xxx sxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will mxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 1(n) of Exhibit IV to the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unlessunless Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrator;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cooper Tire & Rubber Co)
Subordination Provisions. (i) The Sponsor covenants indebtedness evidenced by the Notes (whether consisting of principal, interest, expenses or other sums, all as now exists or may, after the date of the Notes, be incurred, renewed, extended, or amended) shall be subordinate and agrees, and the Servicer, by its acceptance of this Note, likewise covenants and agrees, that the payment of all Junior Liabilities is hereby expressly subordinated junior in right of payment to the prior payment and performance in full in immediately available funds of all Senior Indebtedness. For purposes of the Notes, “Senior Liabilities Indebtedness” shall mean the principal and all unpaid interest, fees, expenses, letters of credit and reimbursement obligations, charges and other unpaid sums owed on, under, or in connection with (1) that certain Credit Agreement dated as of August 19, 2013 by and among the Company, together with its U.S. and Canadian subsidiaries, and Comerica Bank, as Administrative Agent, and certain other lenders, as it may be amended, restated, extended, renewed, replaced, increased or otherwise modified from time to time, (2) any other indebtedness or obligations which are incurred the date hereof by the Company (directly or indirectly) in replacement or refinancing of any Senior Indebtedness from time to time (whether or not with the same lender(s)) or (3) any other indebtedness of the Company that is explicitly intended to be senior to the extent and in Notes, whether incurred on or after the manner set forth in the following clauses of this paragraph 7:
(i) date thereof. In the event of the liquidation or dissolution of the Company, the distribution of any dissolution, winding up, of the assets of the Company or any successor on account of any liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvencyreceivership, receivership or other similar proceedingsreorganization, or upon an assignment for the benefit of creditorscreditors or similar proceeding (each, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called a “Bankruptcy ProceedingsProceeding”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Holder shall first be paid and performed in full and in cash before the Servicer shall not be entitled to receive and to retain any payment or distribution pursuant to the Notes or such Proceeding until all Senior Indebtedness has been satisfied in respect full in immediately available funds. Notwithstanding anything to the contrary herein, the Company is permitted to make, and the Holder is permitted to accept, regularly scheduled payments of principal (including payment of all outstanding principal on the Junior Liabilities. In order to implement the foregoing: (xMaturity Date) all payments and distributions of any kind or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause interest as well as fees, costs, and expenses due and payable hereunder unless (a) shall be made directly to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer); and (y) the Servicer hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence of any of the events described in clause (a)(i) or (ii), in the event that the Servicer receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment holder of the Senior Liabilities Indebtedness (or an authorized representative) has notified the Company in writing that a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor default has occurred and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the Servicer, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer).
(e) The Servicer shall not, until the Senior Liabilities have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or due or to become due (other than the Senior Liabilities), the Junior Liabilities or any rights in respect hereof or (ii) convert the Junior Liabilities into an equity interest in the Sponsor, unless, in the case of each of clauses (i) and (ii) above, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings continuing with respect to the Sponsor until at least one year Senior Indebtedness, or (b) a Proceeding shall have commenced and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made be continuing with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been madeCompany.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Note Purchase Agreement (Manitex International, Inc.)
Subordination Provisions. The Sponsor covenants and (a) Except as otherwise specified, the Company agrees, and each Holder of the Servicer, Notes by its acceptance of this Note, likewise covenants and accepting the Notes agrees, that the payment of all Junior Liabilities indebtedness evidenced by the Notes is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities payment, to the extent and in the manner set forth provided in this Section 4.02, to the following clauses prior payment in full of this paragraph 7:all Senior Indebtedness and that the subordination is for the benefit of the holders of Senior Indebtedness.
(ib) In the event of (a) any dissolutioninsolvency or bankruptcy case or proceeding, winding upor any receivership, liquidation, readjustment, reorganization or other similar event relating case or proceeding in connection therewith, relative to the SponsorCompany or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary, partial or complete, involuntary and whether in or not involving insolvency or bankruptcy, insolvency, receivership or other similar proceedings, or upon an (c) any assignment for the benefit of creditors, creditors or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement Company (such proceedings being herein collectively called “Bankruptcy Proceedings”(a) through (c), and an “Insolvency Event”):
(iii) on and after the occurrence holders of an Event of Default, the Senior Liabilities shall first be paid and performed in full and in cash before the Servicer Indebtedness shall be entitled to receive payment in full in cash of the principal thereof, and premium, if any, additional amounts owing in respect thereof, if any, and interest thereon (including interest accruing after the commencement of any such proceeding) to retain the date of payment on the Senior Indebtedness before Holders shall be entitled to receive any payment of principal of or interest on Notes;
(ii) until the Senior Indebtedness is paid in full in cash, any indebtedness to which Holders of the Notes or the Trustee would be entitled (except for the fees and expenses due and owing to Trustee) but for this Section 4.02 shall be made to holders of Senior Indebtedness as their interests may appear for the application to the payment thereof, except that Holders of the Notes may receive securities that are subordinated to Senior Indebtedness to at least the same extent as the Notes; and
(iii) the Trustee is entitled to conclusively rely upon an order or decree of a court of competent jurisdiction or a certificate of a bankruptcy trustee or other similar official for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of Senior Indebtedness and other Company debt, the amount thereof or payable thereon and all other pertinent facts relating to the Trustee’s obligations under this Section 4.02.
(c) In the event that, notwithstanding the foregoing provisions of this Section 4.02, the Trustee or the Holder of any of the Notes shall have received any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, including by way of set-off or any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Notes, before all Senior Indebtedness is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder of the Notes, in writing by the Company then and in such event such payment or distribution shall be paid over or delivered forthwith to the Trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. Any taxes that have been withheld or deducted from any payment or distribution in respect of the Junior Liabilities. In order Notes, or any taxes that ought to implement the foregoing: (x) all payments and distributions of have been withheld or deducted from any kind such payment or character in respect of the Junior Liabilities to which the Servicer would be entitled except for this clause (a) shall be made directly distribution that have been remitted to the Indenture Trustee (for the benefit of the Noteholdersrelevant taxing authority, and the Insurer); and (y) the Servicer hereby irrevocably agrees shall not be considered to be an amount that the Indenture Trustee (on behalf of or the Noteholders), in the name of the Servicer or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer relating to the Junior Liabilities, in each case until the Senior Liabilities shall have been paid and performed in full and in cash.
(b) Following the occurrence Holder of any of the events described in clause (a)(i) or (ii), in the event that the Servicer Notes receives any payment or other distribution of any kind or character from the Sponsor or from any other source whatsoever, in respect of the Junior Liabilities, such payment or other distribution shall be received in trust for the Indenture Trustee and shall be turned over by the Servicer to the Indenture Trustee (for the benefit of the Noteholders, and the Insurer) forthwith. All payments and distributions received by the Indenture Trustee in respect purposes of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee (for the benefit of the Noteholders and the Insurer) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and any balance thereof shall, solely as between the Servicer and the Noteholders and the Insurer, be applied by the Indenture Trustee toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the Indenture; but as between the Sponsor and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.
(c) Upon the final payment in full and in cash of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments or distributions from the Sponsor that are applicable to the Senior Liabilities until the Junior Liabilities are paid in fullSection.
(d) These Subordination Provisions are intended solely (i) The Company may not pay principal of, or premium, if any or interest on the Notes and may not acquire any Notes for the purpose of defining the relative rights cash or property, other than capital stock, of the ServicerCompany if:
(A) a default (x) in the payment of principal, premium, if any, or interest, on any Senior Indebtedness beyond any applicable grace period with respect thereto occurs and is continuing or (y) arising from an Insolvency Event of the one handCompany occurs and, in the case of both (x) and (y), holders of the Senior Indebtedness have accelerated the maturity of such Senior Indebtedness due to such event of default;
(B) a default on Senior Indebtedness other than those referenced in clause (A) above occurs and is continuing and the Indenture holders of such Senior Indebtedness (or a Representative on their behalf) accelerate the maturity of such Senior Indebtedness; provided, that a holder, or a Representative of the holders, of such Senior Indebtedness shall have provided written notice to the Company that the holders of the Senior Indebtedness have accelerated the maturity of such Senior Indebtedness due to such event of default; or
(C) a default under any Senior Indebtedness is the subject of judicial proceedings or the Trustee receives a notice of the default from the Company.
(on behalf of Noteholders and the Insurer), ii) The Company may resume payments on the other hand. Nothing contained Notes and may acquire them when all defaults referenced in these Subordination Provisions clause (d)(i) above are cured or elsewhere in this Note (subject to paragraph 10 hereof) is intended to waived or any acceleration shall impair, as between the Sponsor, its creditors (other than the Noteholders and the Insurer) and the Servicer, the Sponsor’s obligation, which is unconditional and absolute, to pay the Junior Liabilities as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement have been rescinded or to affect the relative rights of the Servicer and creditors of the Sponsor (other than the Noteholders and the Insurer)annulled.
(e) The Servicer In the event that any Notes are declared due and payable before their stated Maturity Date, then and in such event the holders of Senior Indebtedness shall not, until the Senior Liabilities have been finally paid and performed be entitled to receive payment in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the Sponsor, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter existing, or all amounts due or to become due (other than the Senior Liabilities), the Junior Liabilities on or any rights in respect hereof of all Senior Indebtedness or provision shall be made for such payment in cash, before the Holders of the Notes are entitled to receive any payment (iiincluding any payment which may be payable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Notes) convert by the Junior Liabilities into an equity Company on account of the principal of, or premium, if any or interest on the Notes or on account of the purchase or other acquisition of Notes; provided, that any money deposited pursuant to Article 12 of the Base Indenture not in violation of the SponsorIndenture shall not be subject to the claims of holders of Senior Indebtedness, unless, in the case avoidance of each of clauses (i) and (ii) abovedoubt, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.
(f) The Servicer shall not, except without the advance written consent of the Indenture Trustee and the Insurer commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor until at least one year and one day have passed since the Termination Date.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether it was deposited in connection with any Bankruptcy Proceedings declaration of acceleration under the Indenture. In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or otherwise)the Holder of any Note prohibited by the foregoing provisions of this Section, these Subordination Provisions shall continue and if such fact shall, at or prior to be effective or shall be reinstatedthe time of such payment, have been made known to the Trustee in writing or, as the case may be, as though such Holder, then and in such event such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders shall be paid over and the Insurer) may, from time to time, with the consent of the Insurer without notice delivered forthwith to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors Trustee with respect to any of the such Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or propertyIndebtedness.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: First Supplemental Indenture (Origin Bancorp, Inc.)
Subordination Provisions. The Sponsor Company covenants and agrees, and LGEC and any other holder of this Company Note (collectively, LGEC and any such other holder are called the Servicer"HOLDER"), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 7PARAGRAPH 9:
(a) No payment or other distribution of the Company's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under PARAGRAPH 1(m) of EXHIBIT IV of the Receivables Purchase Agreement or (ii) made pursuant to CLAUSE (a) or (b) of PARAGRAPH 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”"BANKRUPTCY PROCEEDINGS"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer LGEC shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause CLAUSE (aB) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Purchaser (or the Administrator acting on behalf of the NoteholdersPurchaser's behalf), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will xxxx its books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer LGEC and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in SECTION 1.4(d)(ii) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under PARAGRAPH 1(M) of EXHIBIT IV of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee Administrator and the Insurer Purchaser in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.Interests;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Louisville Gas & Electric Co /Ky/)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 78:
(a) No payment or other distribution of the Company’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under the Receivables Purchase Agreement or (ii) made pursuant to paragraph 5 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersPurchasers), in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Company (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable and documented attorneys’ fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 4.01(a) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorCompany’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorCompany, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance prior written consent of the Indenture Trustee Administrative Agent and the Insurer Majority Group Agents, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; Interests and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, until payment in full thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, hold Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Synchronoss Technologies Inc)
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerOriginator and any other holder of this Subordinated Note (collectively, the Originator and any such other holder are called the “Holder”), by its acceptance of this Subordinated Note, likewise covenants and agreesagrees on behalf of itself and any Holder, that the payment of all Junior Liabilities the principal amount of and interest on this Subordinated Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Subordinated Note except to the extent such payment or other distribution is (i) permitted under Section 7.01(v) of the Receivables Financing Agreement or (ii) made pursuant to clause (a), (b) or (c) of paragraph 6 of this Subordinated Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorBuyer, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Buyer or any sale of all or substantially all of the assets of the Sponsor except pursuant to Buyer other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Subordinated Note. In order to implement the foregoing: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Subordinated Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the NoteholdersSenior Interest Holders); (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Subordinated Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrative Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Administrative Agent (acting on behalf of the NoteholdersLenders), may in the name of the Servicer Holder or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Subordinated Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Subordinated Note, other than as expressly permitted by the Junior Liabilitiesterms of this Subordinated Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. The Holder will xxxx its books and records so as clearly to indicate that this Subordinated Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Subordinated Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ fees and legal expensesAttorney Costs) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Subordinated Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent (in the order of application set forth in Section 3.01(a) of the Receivables Financing Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Subordinated Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash of all Senior Liabilitiescash. If no Bankruptcy Proceedings are pending, the Servicer Holder shall only be subrogated entitled to the exercise any subrogation rights that it may acquire (by reason of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Subordinated Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under Section 7.01(v) of the Receivables Financing Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Subordinated Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities Holder the principal of and interest on this Subordinated Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Subordinated Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Subordinated Note into an equity interest in the SponsorBuyer, unlessunless the Holder shall, in the case of each of clauses (i) and (ii) aboveeither case, the Servicer shall have received the prior written consent of the Indenture Trustee and the Insurer in each case.Administrative Agent;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrative Agent and the Insurer each Lender, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to against the Sponsor Buyer until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor Holder to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrative Agent may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Integra Lifesciences Holdings Corp)
Subordination Provisions. The Sponsor Buyer covenants and agrees, and the ServicerCompany, by its acceptance of this Note, likewise covenants and agrees, in each case, for the benefit of the other and for the benefit of the Senior Interest Holders, that the payment of all Junior Liabilities is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests, and any payment hereunder is pari passu in right of payment and performance to all other Junior Liabilities, to the extent and in the manner set forth in the following clauses of this paragraph 7:Section 7 (the “Subordination Provisions”):
(a) No payment or other distribution of Buyer’s assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Note except to the extent such payment or other distribution is (i) permitted under the Loan and Security Agreement or (ii) made pursuant to Sections 4 or 6 of this Note.
(i) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the Sponsor, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, receivership or other similar proceedings, or upon an assignment for the benefit Event of creditors, or any other marshalling of the assets and liabilities of the Sponsor or any sale of all or substantially all of the assets of the Sponsor except pursuant to the Sale and Servicing Agreement (such proceedings being herein collectively called “Bankruptcy Proceedings”)involving Buyer, and (ii) on and after the occurrence of an Event of Defaultthe Purchase and Sale Termination Date, the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall first be paid and performed in full and in cash before the Servicer Company shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Note. In order to implement the foregoing: (xA) all payments and distributions of any kind or character in respect of the Junior Liabilities this Note to which the Servicer Company would be entitled except for this clause (asubsection 7(b) shall be made directly to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, and the InsurerSenior Interest Holders); and (yB) the Servicer Company hereby irrevocably agrees that the Indenture Trustee (on behalf of the Noteholders)Administrative Agent, in the name of the Servicer Company or otherwise, may demand, xxx for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any proceeding related to such Event of Bankruptcy Proceedings with respect to any and all claims of the Servicer Company relating to the Junior Liabilitiesthis Note, in each case until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) shall have been paid and performed in full and in cash.
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Company receives any payment or other distribution of any kind or character from the Sponsor Buyer or from any other source whatsoever, in respect of this Note, other than as expressly permitted by the Junior Liabilitiesterms of this Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall immediately be turned over in cash by the Servicer Company to the Indenture Trustee Administrative Agent (for the benefit of the Noteholders, Senior Interest Holders) until the Senior Interests (other than unasserted contingent indemnification obligations) have been paid in full and the Insurer) forthwithin cash. All payments and distributions received by the Indenture Trustee Administrative Agent in respect of this Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrative Agent (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first first, to the payment of any and all reasonable expenses (including reasonable including, without limitation, attorneys’ fees and other legal expenses) paid or incurred by the Indenture Trustee, the Noteholders Administrative Agent or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilities, and second, any balance thereof shall, solely as between the Servicer any Originator (including Company hereunder) and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrative Agent toward the payment of the Senior Liabilities Interests in a manner determined by the Indenture Trustee Administrative Agent to be in accordance with the IndentureLoan and Security Agreement; but as between the Sponsor Buyer and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior LiabilitiesInterests.
(cd) Upon the final payment in full and in cash of all Senior LiabilitiesInterests (other than unasserted contingent indemnification obligations), the Servicer Company shall be subrogated to the rights of the Indenture Trustee Senior Interest Holders to receive payments or distributions from the Sponsor Buyer that are applicable to the Senior Liabilities Interests until the Junior Liabilities are this Note is paid in fullfull and in cash.
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerCompany, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer)Senior Interest Holders, on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorBuyer, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerCompany, the SponsorBuyer’s obligation, which is unconditional and absolute, to pay the Junior Liabilities this Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Purchase and Sale and Servicing Agreement or to affect the relative rights of the Servicer Company and creditors of the Sponsor Buyer (other than the Noteholders and the InsurerSenior Interest Holders).
(ef) The Servicer Company shall not, until the Senior Liabilities Interests (other than unasserted contingent indemnification obligations) have been finally paid and performed in full and in cash, : (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorBuyer, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Note, or any rights in respect hereof thereof or (ii) convert the Junior Liabilities this Note into an equity interest in the SponsorBuyer, unless, in the case of each of clauses (i) and (ii) above, the Servicer Company shall have received the prior written consent of the Indenture Trustee and the Insurer in each caseAdministrative Agent.
(fg) The Servicer Company shall not, except without the advance written consent of the Indenture Trustee and the Insurer not commence, or join with any other Person in commencing, any proceedings related to an Event of Bankruptcy Proceedings with respect to the Sponsor Buyer until at least one year and one day shall have passed since the Termination DateSenior Interests (other than unasserted contingent indemnification obligations) shall have been paid in full and in cash.
(g) If, at any time, any of the payment (in whole or in part) made with respect to any Senior Liabilities is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.
(h) The Indenture Trustee (on behalf of Noteholders and the Insurer) may, from time to time, with the consent of the Insurer without notice to the Servicer, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: retain or obtain an interest in any property to secure any of the Senior Liabilities; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior Liabilities; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior Liabilities, or release or compromise any obligation of any nature with respect to any of the Senior Liabilities; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related document; and (v) release its security interest in or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior Liabilities, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.
(i) The Servicer hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Liabilities; and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Liabilities, or any thereof, or any security therefor.
(j) These Subordination Provisions constitute a continuing offer from the Sponsor to all Persons who become the holders of, or who continue to hold, Senior Liabilities; and these Subordination Provisions are made for the benefit of the Noteholders and the Insurer, and the Indenture Trustee may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hill-Rom Holdings, Inc.)
Subordination Provisions. The Sponsor Company covenants and agrees, and the ServicerOriginator and any other holder of this Company Note (collectively, the Originator and any such other holder are called the "Holder"), by its acceptance of this Company Note, likewise covenants and agreesagrees on behalf of itself and any holder of this Company Note, that the payment of all Junior Liabilities the principal amount of and interest on this Company Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Liabilities Interests to the extent and in the manner set forth in the following clauses of this paragraph 79:
(a) No payment or other distribution of the Company's assets of any kind or character, whether in cash, securities, or other rights or property, shall be made on account of this Company Note except to the extent such payment or other distribution is (i) permitted under paragraph 1(n) of Exhibit IV of the Receivables Purchase Agreement or (ii) made pursuant to clause (a) or (b) of paragraph 6 of this Company Note;
(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to the SponsorCompany, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency, insolvency or receivership or other similar proceedings, or upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of the Sponsor Company or any sale of all or substantially all of the assets of the Sponsor except pursuant to Company other than as permitted by the Purchase and Sale and Servicing Agreement (such proceedings being herein collectively Exhibit B-3 Purchase and Sale Agreement 44 called “"Bankruptcy Proceedings”"), and (ii) on and after the occurrence of an Event of Default, the Senior Liabilities Interests shall first be paid and performed in full and in cash before the Servicer Originator shall be entitled to receive and to retain any payment or distribution in respect of the Junior Liabilitiesthis Company Note. In order to implement the foregoingforegoing during any Bankruptcy Proceeding: (xi) all payments and distributions of any kind or character in respect of the Junior Liabilities this Company Note to which the Servicer Holder would be entitled except for this clause (ab) shall be made directly to the Indenture Trustee Administrator (for the benefit of the NoteholdersSenior Interest Holders); (ii) Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Insurer)Administrator (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash; and (yiii) the Servicer Holder hereby irrevocably agrees that the Indenture Trustee Issuer (or the Administrator acting on behalf of the NoteholdersIssuer's behalf), in the name of the Servicer Holder or otherwise, may demand, xxx forsue xxr, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Servicer Holder relating to the Junior Liabilitiesthis Company Note, in each case until the Senior Liabilities Interests shall have been paid and performed in full and in cash.;
(bc) Following the occurrence of any of the events described in clause (a)(i) or (ii), in In the event that the Servicer Holder receives any payment or other distribution of any kind or character from the Sponsor Company or from any other source whatsoever, in respect of this Company Note, other than as expressly permitted by the Junior Liabilitiesterms of this Company Note, such payment or other distribution shall be received in trust for the Indenture Trustee Senior Interest Holders and shall be turned over by the Servicer Holder to the Indenture Trustee Administrator (for the benefit of the Noteholders, and the InsurerSenior Interest Holders) forthwith. Holder will marx xxs books and records so as clearly to indicate that this Company Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Indenture Trustee Administrator in respect of this Company Note, to the extent received in or converted into cash, may be applied by the Indenture Trustee Administrator (for the benefit of the Noteholders and the InsurerSenior Interest Holders) first to the payment of any and all reasonable expenses (including reasonable attorneys’ ' fees and legal expenses) paid or incurred by the Indenture Trustee, the Noteholders or the Insurer Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect or realize upon the Junior Liabilitiesthis Company Note, and any balance thereof shall, solely as between the Servicer Originator and the Noteholders and the InsurerSenior Interest Holders, be applied by the Indenture Trustee Administrator (in the order of application set forth in Section 1.4(d)(ii) of the Receivables Purchase Agreement) toward the payment of the Senior Liabilities in a manner determined by the Indenture Trustee to be in accordance with the IndentureInterests; but as between the Sponsor Company and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Liabilities.Interests;
(cd) Upon Notwithstanding any payments or distributions received by the final payment Senior Interest Holders in respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash cash. If no Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of all Senior Liabilities, the Servicer shall be subrogated to the rights of the Indenture Trustee to receive payments a payment or distributions from the Sponsor that are applicable distribution to the Senior Liabilities until Interest Holders in respect of this Company Note) to the Junior Liabilities are paid in full.extent that any payment arising out of the exercise of such rights would be permitted under paragraph 1(n) of Exhibit IV of the Receivables Purchase Agreement;
(de) These Subordination Provisions are intended solely for the purpose of defining the relative rights of the ServicerHolder, on the one hand, and the Indenture Trustee (on behalf of Noteholders and the Insurer), Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Company Note (subject to paragraph 10 hereof) is intended to or shall impair, as between the SponsorCompany, its creditors (other than the Noteholders and the InsurerSenior Interest Holders) and the ServicerHolder, the Sponsor’s Company's obligation, which is unconditional and absolute, to pay Holder the Junior Liabilities principal of and interest on this Company Note as and when the same shall become due and payable in accordance with the terms hereof (subject to paragraph 10 hereof) and of the Sale and Servicing Agreement or to affect the relative rights of the Servicer Holder and creditors of the Sponsor Company (other than the Noteholders and the InsurerSenior Interest Holders).;
(ef) The Servicer Holder shall not, until the Senior Liabilities Interests have been finally paid and performed in full and in cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of the SponsorCompany, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or thereafter hereafter existing, or due or to become due (due, other than the Senior Liabilities)Interests, the Junior Liabilities this Company Note or any rights in respect hereof or (ii) convert the Junior Liabilities this Company Note into an equity interest in the SponsorCompany, unless, in the case of each of clauses (i) and (ii) above, the Servicer unless Holder shall have received the prior written consent of the Indenture Trustee Administrator and the Insurer Issuer in each case.;
(fg) The Servicer Holder shall not, except without the advance written consent of the Indenture Trustee Administrator and the Insurer Issuer, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to the Sponsor Company until at least one year and one day shall have passed since the Termination Date.Senior Interests shall have been paid and performed in full and in cash;
(gh) If, at any time, any of the payment (in whole or in part) made with respect to of any Senior Liabilities Interest is rescinded or must be restored or returned by the Indenture Trustee or Noteholders or the Insurer a Senior Interest Holder (whether in connection with any Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made.;
(hi) The Indenture Trustee (on behalf Each of Noteholders and the Insurer) Senior Interest Holders may, from time to time, with the consent of the Insurer at its sole discretion, without notice to the ServicerHolder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior LiabilitiesInterests; (ii) retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to any of the Senior LiabilitiesInterests; (iii) extend or renew for one or more periods (whether or not longer than the original period), alter or exchange any of the Senior LiabilitiesInterests, or release or compromise any obligation of any nature with respect to any of the Senior LiabilitiesInterests; (iv) amend, supplement, amend and restate, or otherwise modify the Sale and Servicing Agreement or any related documentTransaction Document; and (v) release its security interest in in, or surrender, release or permit any substitution or exchange for all or any part of any rights or property securing any of the Senior LiabilitiesInterests, or extend or renew for one or more periods (whether or not longer than the original period) ), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such rights or property.;
(ij) The Servicer Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Noteholders and the Insurer, Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior LiabilitiesInterests; and (iii) all diligence in Exhibit B-5 Purchase and Sale Agreement 46 enforcement, collection or protection of, or realization upon, the Senior LiabilitiesInterests, or any thereof, or any security therefor.;
(jk) Each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor; and
(l) These Subordination Provisions constitute a continuing offer from the Sponsor holder of this Company Note to all Persons who become the holders of, or who continue to hold, Senior LiabilitiesInterests; and these Subordination Provisions are made for the benefit of the Noteholders and the InsurerSenior Interest Holders, and the Indenture Trustee Administrator may proceed to enforce such provisions on behalf of each of such Persons.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Kulicke & Soffa Industries Inc)
