WHOLE OR IN PART BY THE COLLATERAL AGENT
6
OR ANY SUCH SENIOR LENDER, AND ANY SENIOR OBLIGATION MAY BE CONTINUED, AND THE
SENIOR OBLIGATIONS, OR THE LIABILITY OF THE COMPANY OR ANY GUARANTOR OR ANY
OTHER PARTY UPON OR FOR ANY PART THEREOF, OR ANY COLLATERAL SECURITY OR
GUARANTEE THEREFOR OR RIGHT OF OFFSET WITH RESPECT THERETO, OR ANY OBLIGATION OR
LIABILITY OF THE COMPANY OR ANY OTHER PARTY UNDER THE SECURITIES PURCHASE
AGREEMENT OR ANY OTHER AGREEMENT, MAY, FROM TIME TO TIME, IN WHOLE OR IN PART,
BE RENEWED, EXTENDED, MODIFIED, ACCELERATED, COMPROMISED, WAIVED, SURRENDERED,
OR RELEASED BY THE COLLATERAL AGENT OR ANY SENIOR LENDER EACH IN ITS SOLE
DISCRETION; AND
(II)
THE SECURITIES PURCHASE AGREEMENT, THE
SENIOR NOTES AND ANY OTHER SENIOR DEBT DOCUMENT MAY BE AMENDED, SUPPLEMENTED,
MODIFIED OR TERMINATED, IN WHOLE OR IN PART, AS THE COLLATERAL AGENT OR ANY
SENIOR LENDER MAY DEEM ADVISABLE EACH IN ITS SOLE DISCRETION FROM TIME TO TIME,
AND ANY COLLATERAL SECURITY AT ANY TIME HELD BY THE COLLATERAL AGENT OR ANY
SENIOR LENDER FOR THE PAYMENT OF ANY OF THE SENIOR OBLIGATIONS MAY BE SOLD,
EXCHANGED, WAIVED, SURRENDERED OR RELEASED;
in each case all without notice to or further assent by any Subordinated Lender,
which will remain bound under this Agreement, and all without impairing,
abridging, releasing or affecting the subordination provided for herein.
(B)
EACH SUBORDINATED LENDER WAIVES ANY AND ALL
NOTICE OF THE CREATION, RENEWAL, EXTENSION OR ACCRUAL OF ANY OF THE SENIOR
OBLIGATIONS AND NOTICE OF OR PROOF OF RELIANCE BY THE SENIOR LENDERS UPON THIS
AGREEMENT.
THE SENIOR OBLIGATIONS, AND ANY OF THEM, SHALL BE DEEMED
CONCLUSIVELY TO HAVE BEEN CREATED, CONTRACTED OR INCURRED IN RELIANCE UPON THIS
AGREEMENT, AND ALL DEALINGS BETWEEN THE COMPANY AND THE SENIOR LENDERS SHALL BE
DEEMED TO HAVE BEEN CONSUMMATED IN RELIANCE UPON THIS AGREEMENT.
EACH
SUBORDINATED LENDER ACKNOWLEDGES AND AGREES THAT THE SENIOR LENDERS HAVE RELIED
UPON THE SUBORDINATION PROVIDED FOR HEREIN IN ACQUIRING ITS SENIOR NOTES.
EACH
SUBORDINATED LENDER WAIVES ANY NOTICE OF OR PROOF OF RELIANCE ON THIS AGREEMENT
AND ANY PROTEST, DEMAND FOR PAYMENT AND NOTICE OF DEFAULT.
6.
NEGATIVE COVENANTS OF THE SUBORDINATED
LENDERS.
SO LONG AS ANY OF THE SENIOR OBLIGATIONS SHALL REMAIN OUTSTANDING, NO
SUBORDINATED LENDER SHALL:
(A)
WITHOUT THE PRIOR WRITTEN CONSENT OF THE
COMPANY GIVEN IN ACCORDANCE WITH THE TERMS OF THE SENIOR NOTES, SELL, ASSIGN, OR
OTHERWISE TRANSFER, IN WHOLE OR IN PART, THE SUBORDINATED OBLIGATIONS OR ANY
INTEREST THEREIN TO ANY OTHER PERSON (A "TRANSFEREE") OR CREATE, INCUR OR SUFFER
TO EXIST ANY SECURITY INTEREST, LIEN, CHARGE OR OTHER ENCUMBRANCE WHATSOEVER
(COLLECTIVELY, A "TRANSFER") UPON THE SUBORDINATED OBLIGATIONS IN FAVOR OF ANY
TRANSFEREE.
UPON ANY SUCH TRANSFER (1) SUCH ACTION SHALL BE MADE EXPRESSLY
SUBJECT TO THIS AGREEMENT AND (2) THE TRANSFEREE SHALL EXPRESSLY ACKNOWLEDGE TO
THE COLLATERAL AGENT, BY A WRITING SUBSTANTIALLY IN THE FORM OF EXHIBIT A
ATTACHED HERETO, THE SUBORDINATION PROVIDED FOR HEREIN AND AGREES TO BE BOUND BY
ALL OF THE TERMS