Common use of Subordinate Indebtedness Clause in Contracts

Subordinate Indebtedness. Debtor acknowledges and shall cause each Seller to acknowledge that the Indebtedness is “Senior Indebtedness” as such term is defined in each UNSECURED SUBORDINATED PROMISSORY NOTE (collectively, the “Subordinate Notes” and each a “Subordinate Note”) executed by Debtor and payable to the order of a Seller in accordance with Section 8(n)(iii). The Subordinate Indebtedness shall not be payable, and Debtor shall not make any payment (whether of principal, accrued interest or otherwise) or other distribution of, on or with respect to any Subordinate Indebtedness, and no Seller shall receive, accept, retain or apply any such payment or other distribution, unless and until: (i) the Indebtedness shall have been Indefeasibly Paid; and (ii) Lender shall have no further obligations under the Loan Documents to make loans to Debtor. Debtor shall not permit any amendment or modification of any Subordinate Note without the prior written consent shall consent shall not be unreasonably denied or delayed. NOTWITHSTANDING THE FOREGOING, DEBTOR SHALL BE PERMITTED TO MAKE REGULARLY SCHEDULED PAYMENTS OF INTEREST ON THE SUBORDINATE INDEBTEDNESS: (1) PRIOR TO THE OCCURRENCE OF A DEFAULT OR EVENT OF DEFAULT UNDER THE LOAN DOCUMENTS; AND (2) PROVIDED THAT A LEVEL 1 TRIGGER HAS NOT OCCURRED AND IS CONTINUING.

Subordinate Indebtedness. Debtor acknowledges All debts now or hereafter payable by Borrowers, or either of them, to Parent shall be called the ASubordinate Indebtedness.@ Borrowers have incurred and shall cause each Seller may hereafter incur Subordinate Indebtedness owed to acknowledge Parent. Borrowers and Parent agree to sign and deliver in favor of Agent and Banks, a subordination agreement (the ASubordination Agreement@) in Proper Form, by which Borrowers and Parent subordinate the Subordinate Indebtedness to repayment of the Loans and the Hedge Liabilities. Borrowers and Parent hereby agree that (i) the Indebtedness is “Senior Indebtedness” as such term is defined in each UNSECURED SUBORDINATED PROMISSORY NOTE (collectively, the “Subordinate Notes” and each a “Subordinate Note”) executed by Debtor and payable to the order of a Seller in accordance with Section 8(n)(iii). The Subordinate Indebtedness shall not be payableexceed $2,000,000.00 in aggregate principal at any time, (ii) repayment of the Subordinate Indebtedness is subordinate to repayment of the Loans and the Hedge Liabilities, (iii) Borrowers will not grant, and Debtor shall subordinate creditors will not make permit, any liens or security interests securing payment of the Subordinate Indebtedness covering the Properties, any other collateral of Agent, or any of Borrowers= assets, (whether iv) the Subordinate Indebtedness may not mature by its terms or by acceleration of principalthe maturity before thirty (30) days after the Termination Date (as hereafter extended), accrued interest (v) no payments, prepayments, or otherwise) or other distribution of, on or with respect changes may be made to any the Subordinate Indebtedness, and no Seller shall receiveexcept as specifically permitted hereunder, accept, retain or apply any such payment or other distribution, unless and until: (i) the Indebtedness shall have been Indefeasibly Paid; and (ii) Lender shall have no further obligations under the Loan Documents to make loans to Debtor. Debtor shall not permit any amendment or modification of any Subordinate Note without the prior written consent shall consent shall of Agent, (vi) so long as there is not an Event of Default existing, no Event of Default will be unreasonably denied caused by the payment, and so long that there is no Borrowing Base deficiency, Borrowers may pay up to $1,000,000.00 per fiscal year to Parent as a management fee, and repay up to $2,000,000.00 in principal per fiscal year in Subordinate Indebtedness, and (vii) unless and only to the extent that Agent gives its prior written consent, no other payments of principal or delayed. NOTWITHSTANDING THE FOREGOING, DEBTOR SHALL BE PERMITTED TO MAKE REGULARLY SCHEDULED PAYMENTS OF INTEREST ON THE SUBORDINATE INDEBTEDNESS: (1) PRIOR TO THE OCCURRENCE OF A DEFAULT OR EVENT OF DEFAULT UNDER THE LOAN DOCUMENTS; AND (2) PROVIDED THAT A LEVEL 1 TRIGGER HAS NOT OCCURRED AND IS CONTINUINGinterest will be permitted on the Subordinate Indebtedness until the Loans and the Hedge Liabilities are paid in full.