collected or received when there is or would be
after giving effect to such payment an Event of Default, then such PH Party will
forthwith deliver, or cause to be delivered, the same to the Mezzanine Investors
until the Guaranteed Obligations are paid in full in cash or cash equivalents
acceptable to the Mezzanine Investors in precisely the form held by such PH
Party (except for any necessary endorsement) and until so delivered, the same
shall be held in trust by such PH Party, or any such Affiliate, as the property
of the Mezzanine Investors and shall not be commingled with other property of
such PH Party or any such Affiliate.
(g)
Scope of Subordination
The provisions of this Agreement are
solely to define the relative rights of the Mezzanine Investors and the PH
Parties.
Nothing in this Agreement shall impair, as between OpBiz and the PH
Parties the unconditional and absolute obligation of OpBiz to punctually pay, or
cause the payment by any other Obligor, of all obligations owing under the
Licensing Agreement in accordance with the terms thereof, subject to the rights
of the Mezzanine Investors under this Agreement.
(H)
UNTIL THE GUARANTEED OBLIGATIONS HAVE BEEN PAID IN FULL, EACH PH
PARTY FURTHER AGREES AS FOLLOWS:
(I)
THE PH PARTIES SHALL NOT BE ENTITLED TO A CLAIM FOR REJECTION
DAMAGES OF ANY KIND UPON TERMINATION OF THE LICENSE AGREEMENT IN A PROCEEDING
REFERRED TO IN SECTION 2.2(C) HEREOF, IN ANY EVENT OF INSOLVENCY OR OTHERWISE;
(II)
THE PH PARTIES SHALL CONSENT TO THE ASSUMPTION AND/OR ASSIGNMENT
OF THE LICENSE AGREEMENT BY OR TO (X) OPBIZ AS DEBTOR OR DEBTOR-IN-POSSESSION
(OR ANY TRUSTEE APPOINTED IN RESPECT THEREOF) AND/OR THE SUBSTITUTION OF THE
MEZZANINE INVESTORS FOR OPBIZ UNDER THE LICENSE AGREEMENT, OR (Y) EQUITYCO OR
ANY WHOLLY OWNED SUBSIDIARY OF EQUITYCO, OR OTHERWISE IN CONNECTION WITH A SALE
OF OPBIZ, WHETHER IN A PROCEEDING REFERRED TO IN SECTION 2.2(C) HEREOF, IN
CONNECTION WITH ANY EVENT OF INSOLVENCY OR OTHERWISE;
(III)
THE PH PARTIES AGREE THAT THE TERM "LENDERS" (AS DEFINED IN THE
LICENSE AGREEMENT) SHALL MEAN AND BE A REFERENCE TO THE MEZZANINE INVESTORS,
WITH THE EFFECT BEING THAT ALL RIGHTS AND REMEDIES IN THE LICENSE AGREEMENT
RESERVED FOR THE LENDERS WILL INSTEAD BE RIGHTS AND REMEDIES OF THE MEZZANINE
INVESTORS (BY WAY OF EXAMPLE AND NOT OF LIMITATION, THE NON-COMPETITION
OBLIGATIONS OF OPBIZ SHOULD NOT TERMINATE UNLESS AND UNTIL THE GUARANTEED
OBLIGATIONS HAVE BEEN PAID IN FULL).
IN FURTHERANCE THEREOF, ALL REFERENCES TO
THE TERMS "LOAN AGREEMENT" AND "OBLIGATIONS" IN THE LICENSE AGREEMENT WILL
INSTEAD BE DEEMED TO BE REFERENCES TO "PLEDGE AGREEMENT" AND "GUARANTEED
OBLIGATIONS", RESPECTIVELY (IN ALL CASES, AS SUCH TERMS ARE USED AND DEFINED IN
THE LICENSE AGREEMENT); AND
6
(IV)
THE PH PARTIES CANNOT TERMINATE THE LICENSE AGREEMENT UPON
COMMENCEMENT OF A PROCEEDING REFERRED TO IN SECTION 2.2(C) HEREOF OR DURING AN
EVENT OF INSOLVENCY.
3.
MISCELLANEOUS.
3.1
Legends.
From and after the date hereof, each PH Party shall cause
the License Agreement to