BY THE PHRASE "AND/OR."
THE WORDS "HEREOF," "HEREIN," "HEREBY,"
"HEREUNDER," AND SIMILAR TERMS IN THIS AGREEMENT REFER TO THIS AGREEMENT AS A
WHOLE AND NOT TO ANY PARTICULAR PROVISION OF THIS AGREEMENT.
SECTION,
SUBSECTION, CLAUSE, SCHEDULE, AND EXHIBIT REFERENCES ARE TO THIS AGREEMENT
UNLESS OTHERWISE SPECIFIED.
REFERENCES TO AGREEMENTS AND OTHER CONTRACTUAL
INSTRUMENTS SHALL BE DEEMED TO INCLUDE ALL SUBSEQUENT AMENDMENTS AND OTHER
MODIFICATIONS THERETO.
REFERENCES TO STATUTES OR REGULATIONS ARE TO BE
CONSTRUED AS INCLUDING ALL STATUTORY AND REGULATORY PROVISIONS CONSOLIDATING,
AMENDING, OR REPLACING THE STATUTE OR REGULATION REFERRED TO.
THE CAPTIONS AND
HEADINGS ARE FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT AFFECT THE
CONSTRUCTION OF THIS AGREEMENT.
SECTION 2.
SUBORDINATION TO PAYMENT OF SENIOR DEBT.
AS TO EACH
OBLIGOR, ALL PAYMENTS ON ACCOUNT OF THE SUBORDINATED DEBT SHALL BE SUBJECT,
SUBORDINATE, AND JUNIOR, IN RIGHT OF PAYMENT AND EXERCISE OF REMEDIES, TO THE
EXTENT AND IN THE MANNER SET FORTH HEREIN, TO THE PRIOR PAYMENT, IN FULL, IN
CASH OR CASH EQUIVALENTS OF THE SENIOR DEBT.
TO THE EXTENT REQUIRED UNDER ANY
AGREEMENTS TO WHICH ANY OF THE OBLIGORS ARE PARTY, EACH OBLIGOR HEREBY CONSENTS
TO THE SECURITY INTEREST OF AGENT IN EACH OF THE OBLIGOR'S PERSONAL PROPERTY AND
OTHER ASSETS.
SECTION 3.
SUBORDINATION UPON ANY DISTRIBUTION OF ASSETS OF THE
OBLIGORS.
AS TO EACH OBLIGOR, IN THE EVENT OF ANY PAYMENT OR DISTRIBUTION OF
ASSETS OF ANY OTHER OBLIGOR OF ANY KIND OR CHARACTER, WHETHER IN CASH, PROPERTY,
OR SECURITIES, UPON THE DISSOLUTION, WINDING UP, OR TOTAL OR PARTIAL LIQUIDATION
OR REORGANIZATION, READJUSTMENT, ARRANGEMENT, OR SIMILAR PROCEEDING RELATING TO
SUCH OTHER OBLIGOR OR ITS PROPERTY, WHETHER VOLUNTARY OR INVOLUNTARY, OR IN
BANKRUPTCY, INSOLVENCY, RECEIVERSHIP, ARRANGEMENT, OR SIMILAR PROCEEDINGS OR
UPON AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS, OR UPON ANY OTHER MARSHALING OR
COMPOSITION OF THE ASSETS AND LIABILITIES OF SUCH OTHER OBLIGOR, OR OTHERWISE
(SUCH EVENTS, COLLECTIVELY, THE "INSOLVENCY EVENTS") EXCEPT AS OTHERWISE
PERMITTED UNDER SECTION 9.7(A) OF THE LOAN AGREEMENT, BUT IN ANY EVENT, IF AN
EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING:
(I) ALL AMOUNTS OWING ON
ACCOUNT OF THE SENIOR DEBT SHALL FIRST BE PAID, IN FULL, IN CASH, OR PAYMENT
PROVIDED FOR IN CASH OR IN CASH EQUIVALENTS, BEFORE ANY SUBORDINATED DEBT
PAYMENT IS MADE; AND (II) TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY
SUBORDINATED DEBT PAYMENT TO WHICH SUCH OBLIGOR WOULD BE ENTITLED EXCEPT FOR THE
PROVISIONS HEREOF, SHALL BE PAID OR DELIVERED BY THE TRUSTEE IN BANKRUPTCY,
RECEIVER, ASSIGNEE FOR THE BENEFIT OF CREDITORS, OR OTHER LIQUIDATING AGENT
MAKING SUCH PAYMENT OR DISTRIBUTION DIRECTLY TO AGENT FOR APPLICATION TO THE
PAYMENT OF THE SENIOR DEBT IN ACCORDANCE WITH CLAUSE (I), AFTER GIVING EFFECT TO
ANY CONCURRENT PAYMENT OR DISTRIBUTION OR PROVISION THEREFOR TO AGENT OR ANY
LENDER IN RESPECT OF SUCH SENIOR DEBT.
3
SECTION 4.
PAYMENTS ON SUBORDINATED DEBT.
(A)
PERMITTED PAYMENTS.
EXCEPT AS OTHERWISE PERMITTED UNDER THE TERMS
OF THE LOAN AGREEMENT, EACH OBLIGOR MAY MAKE, AND EACH OTHER OBLIGOR SHALL BE
ENTITLED TO