Common use of Subordinated Distributions Clause in Contracts

Subordinated Distributions. Upon any payment or distribution of assets or securities of the Company of any kind or character, whether in cash, property or securities, by way of set-off or otherwise (including any collateral, whether the proceeds thereof or in kind, at any time securing this Note and including 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 this Note) of the Company (all such payments and distributions being referred to collectively as "Subordinated Distributions"), upon any dissolution, winding up, liquidation (partial or complete) or reorganization of the Company (whether voluntary or involuntary and whether in bankruptcy, insolvency, receivership or other proceedings, or upon an assignment for the benefit of creditors or any other marshaling of the assets and liabilities of the Company or otherwise), each of the Company and the holder of this Note, by acceptance hereof, covenants and agrees that: (a) all Senior Debt shall first be paid in full, or provision made for such payment, in accordance with the terms of such Senior Debt, before any payment or distribution of any Subordinated Distribution is made on account of any Subordinated Payments and before the holder of this Note shall be entitled to retain any amounts so paid or distributed in respect thereof; (b) any payment or distribution of any Subordinated Distribution to which the holder of this Note would be entitled except for the provisions of this Section, shall be paid or delivered by the Company or any debtor, custodian, receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, directly to the holders of Senior Debt or their representative or representatives (in accordance with any certificate referred to in this Section) or to the trustee or agent for the holders of such Senior Debt, as their respective interests may appear, to the extent necessary to pay in full all Senior Debt remaining unpaid in accordance with the terms of such Senior Debt, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Debt, before any payment or distribution is made to the holder of this Note; and (c) in the event that, notwithstanding the foregoing, any payment or distribution of any Subordinated Distribution shall be received by the holder of this Note before all Senior Debt is paid in full, or provision made for the payment thereof, in accordance with the terms of such Senior Debt, such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Senior Debt or their representative or representatives, or to the trustee or agent for the holders of such Senior Debt, as their respective interests may appear, to the extent necessary to pay in full all Senior Debt remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Debt. The Company shall give prompt written notice to the holder of this Note of any declaration of any Senior Debt as due and payable before its stated maturity and of any event which pursuant to this Section would prevent payment or distribution of any Subordinated Distribution or any Subordinated Payment with respect to this Note. The holder of this Note shall be entitled to assume that no such event has occurred and shall not at any time be charged with knowledge of the existence of any event which would prohibit the making of any payment to it, unless and until such holder shall have received written notice thereof from the Company or from the holders of Senior Debt or any trustee, agent or representative thereof; and prior to the receipt of any such written notice the holder of this Note shall be entitled to assume conclusively that no such event exists, without, however, limiting any such rights of holders of Senior Debt under this Section to recover from the holder of this Note any payment made to any such holder which it is not entitled under this Section to retain. Upon any payment or distribution of any Subordinated Distribution, the holder of this Note shall be entitled to rely upon an order or decree of any court of competent jurisdiction in which such bankruptcy, insolvency, reorganization, liquidation, receivership or other proceeding is pending, or a certificate of the debtor, custodian, receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, to the holder of this Note, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount distributed thereon and all other facts pertinent thereto or to this Section. The holder of this Note shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt to establish that such notice has been given by a holder of Senior Debt. 5.2

Subordinated Distributions. Upon any payment or distribution of assets or securities of the Company of any kind or character, whether in cash, property or securities, by way of set-off or otherwise (including any collateral, whether the proceeds thereof or in kind, at any time securing this Note and including 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 this Note) of the Company (all such payments and distributions being referred to collectively as "Subordinated Distributions"), upon any dissolution, winding up, liquidation (partial or complete) or reorganization of the Company (whether voluntary or involuntary and whether in bankruptcy, insolvency, receivership or other proceedings, or upon an assignment for the benefit of creditors or any other marshaling of the assets and liabilities of the Company or otherwise), each of the Company and the holder of this Note, by acceptance hereof, covenants and agrees that: (a) all Senior Debt shall first be paid in fullfull in cash, or provision made for such payment, in accordance with the terms of such Senior Debt, before any payment or distribution of any Subordinated Distribution is made on account of any Subordinated Payments and before the holder of this Note shall be entitled to retain any amounts so paid or distributed in respect thereof; (b) any payment or distribution of any Subordinated Distribution to which the holder of this Note would be entitled except for the provisions of this Section, shall be paid or delivered by the Company or any debtor, custodian, receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, directly to the holders of Senior Debt or their representative or representatives (in accordance with any certificate referred to in this Section) or to the trustee or agent for the holders of such Senior Debt, as their respective interests may appear, to the extent necessary to pay in full all Senior Debt remaining unpaid in accordance with the terms of such Senior Debt, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Debt, before any payment or distribution is made to the holder of this Note; and (c) in the event that, notwithstanding the foregoing, any payment or distribution of any Subordinated Distribution shall be received by the holder of this Note before all Senior Debt is paid in fullfull in cash, or provision made for the payment thereof, in accordance with the terms of such Senior Debt, such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Senior Debt or their representative or representatives, or to the trustee or agent for the holders of such Senior Debt, as their respective interests may appear, to the extent necessary to pay in full all Senior Debt remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Debt. The Company shall give prompt written notice to the holder of this Note of any declaration of any Senior Debt as due and payable before its stated maturity and of any event which pursuant to this Section would prevent payment or distribution of any Subordinated Distribution or any Subordinated Payment with respect to this Note. The holder of this Note shall be entitled to assume that no such event has occurred and shall not at any time be charged with knowledge of the existence of any event which would prohibit the making of any payment to it, unless and until such holder shall have received written notice thereof from the Company or from the holders of Senior Debt or any trustee, agent or representative thereof; and prior to the receipt of any such written notice the holder of this Note shall be entitled to assume conclusively that no such event exists, without, however, limiting any such rights of holders of Senior Debt under this Section to recover from the holder of this Note any payment made to any such holder which it is not entitled under this Section to retain. Upon any payment or distribution of any Subordinated Distribution, the holder of this Note shall be entitled to rely upon an order or decree of any court of competent jurisdiction in which such bankruptcy, insolvency, reorganization, liquidation, receivership or other proceeding is pending, or a certificate of the debtor, custodian, receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, to the holder of this Note, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount distributed thereon and all other facts pertinent thereto or to this Section. The holder of this Note shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt to establish that such notice has been given by a holder of Senior Debt. 5.2