Common use of Additional Intercreditor Provision Clause in Contracts

Additional Intercreditor Provision. (a) For greater certainty, the Fairfax Credit Loans are junior and subordinate, and the payment thereof, whether in whole or in part, and whether as to principal, interest, fees, proceeds of Collateral or otherwise, and whether at or prior to maturity or upon acceleration of any maturity, is postponed to the prior payment and satisfaction in full of the EDC Credit Loans. So long as any monies are owing to the EDC Credit Lender under the EDC Credit Loans and the EDC Credit Commitment has not been terminated, no claim for payment shall be made by, and no payment shall be made to, the Fairfax Credit Lender with respect to the Fairfax Credit Loans prior to payment and satisfaction in full of the EDC Credit Loans and the termination of the EDC Credit Facility. In all circumstances, including, without limitation, in the event of demand for payment by the EDC Credit Lender hereunder or in the event of a Default or Event of Default or in the event of bankruptcy, insolvency, dissolution, winding-up liquidation or reorganization of the Borrower or any Guarantor or upon an assignment for the benefit of creditors or otherwise or any receivership or trusteeship proceedings of the Borrower or any Guarantor: (i) the EDC Credit Loans shall be paid and satisfied in full before the Fairfax Credit Lender is entitled to receive any payment relating to the Fairfax Credit Loans and any payment to which any holder of Fairfax Credit Loans would be entitled but for the present subordination provisions shall be paid directly to the EDC Credit Lender; (ii) in the event that any payment or distribution of assets of the Borrower or any Guarantor shall be received by the Fairfax Credit Lender in violation of this Section, such payment or distribution shall be held by the Fairfax Credit Lender in trust for the benefit of the EDC Credit Lender and, upon demand, shall be paid over to the EDC Credit Lender; and (iii) in the event that any monies including dividends shall at any time be payable in respect of the Fairfax Credit Loans in any bankruptcy proceedings relating to the Borrower or any Guarantor at a time when the EDC Credit Loans have not been paid in full, the Fairfax Credit Lender expressly agrees that the EDC Credit Lender shall be entitled to receive the same and to apply the same to the monies owing to it. The Fairfax Credit Lender irrevocably authorizes and directs the EDC Credit Lender and its successors and assigns and any trustee in bankruptcy, receiver or assignee for the benefit of creditors of the Borrower, whether in voluntary or involuntary liquidation, dissolution or reorganization, on its behalf to take such action as may be necessary or appropriate to effectuate the subordination and postponement provisions and other rights granted to the EDC Credit Lender in this Section relating to the Fairfax Credit Loans (including without limitation, in the case of the EDC Credit Lender and its successors and assigns, to file a proof of claim and to vote upon matters with respect to which the Fairfax Credit Lender may be able to vote in connection with any bankruptcy proceedings relating to the Borrower in each case as relates solely to the Fairfax Credit Loans) and irrevocably appoints the EDC Credit Lender and its successors and assigns, acting severally, or any such trustee, receiver or assignee, his attorney or attorneys-in-fact for such purposes with full powers of substitution and re-substitution. The subordination effected hereby and the rights of the EDC Credit Lender in respect of the EDC Credit Loans are limited to the 18,300,000 Dollars of EDC Credit Loans as contemplated hereby that shall be repaid on the EDC Credit Termination Date but otherwise shall not be affected by: (A) any amendment of or addition or supplement to this Agreement or any other instrument or agreement relating to the EDC Credit Loans or securing or guaranteeing any of the EDC Credit Loans; (B) any exercise or non-exercise of any right, power or remedy under or in respect of the EDC Credit Loans or any instrument or agreement relating thereto, or securing or guaranteeing any of same, or (C) any waiver, consent, release, indulgence, extension, renewal, modification, delay or other action, inaction or omission, in respect of any EDC Credit Loans or any instrument or agreement relating thereto, or securing or guaranteeing any of same, all whether or not the Fairfax Credit Lender shall have had notice or knowledge of any of the foregoing; (b) The Fairfax Credit Lender hereby forever subordinates and postpones its existing and future right, title and interest under the Security Documents, to the existing and future interests of the EDC Credit Lender under the Security Documents. The Fairfax Credit Lender agrees that it will not claim priority as against the EDC Credit Lender as it relates to this subordination or as it relates to the EDC Credit Lender’s right to take possession of, deal with, sell, transfer or otherwise dispose of the Collateral; (c) The Fairfax Credit Lender shall duly execute and deliver, or cause to be executed and delivered at the sole cost of the EDC Credit Lender, such other assurances, instruments or documentation necessary or desirable to enable the EDC Credit Lender to obtain the full benefit of this Section; and (d) For greater certainty, if the Exchange Offer is completed, closed and settled and EDC elects not to be repaid, or fails to take action to be repaid as contemplated herein, this Section will no longer be in effect and the Fairfax Credit Loans may be repaid as otherwise contemplated herein.