in effect, and
also including, without limitation, any and all interest accruing on any of the
Senior Debt after the commencement of any proceedings referred to in Section 6
hereof, notwithstanding any provision or rule of law which might restrict the
rights of the Senior Creditors, as against the Borrowers or anyone else, to
collect such interest.
2
"Subordinated Debt" shall mean all obligations, liabilities and indebtedness of
the Borrowers to the Junior Creditor under the Junior Creditor Documents.
"Subordinated Note" shall have the meaning given to such term in Recital A
above, and shall include any amendments, modifications or restatements thereto
or thereof and any note hereafter entered into in replacement thereof (but
nothing in this definition shall be deemed to waive the provisions of Section 12
below requiring the Senior Creditors' prior written consent to any change in any
instrument or agreement evidencing the Subordinated Debt, including without
limitation any warrants attached thereto).
"Subordinated Security Documents" shall mean any security agreement or other
document in which the Borrowers have granted to the Junior Creditor a security
interest in the Junior Collateral.
1.2
IN THIS AGREEMENT, IN THE COMPUTATION OF A PERIOD OF TIME FROM A
SPECIFIED DATE TO A LATER SPECIFIED DATE, UNLESS OTHERWISE STATED THE WORD
"FROM" MEANS "FROM AND INCLUDING" AND THE WORD "TO" OR "UNTIL" EACH MEANS "TO
BUT EXCLUDING."
1.3
OTHER TERMS MAY BE DEFINED IN OTHER PARTS OF THIS AGREEMENT.
ALL
REFERENCES TO AGREEMENTS AND OTHER CONTRACTUAL INSTRUMENTS SHALL BE DEEMED TO
INCLUDE ALL SUBSEQUENT AMENDMENTS THERETO OR CHANGES THEREIN ENTERED INTO IN
ACCORDANCE WITH THEIR RESPECTIVE TERMS, AND ALL REFERENCES TO PERSONS SHALL BE
DEEMED TO INCLUDE THEIR PERMITTED SUCCESSORS AND ASSIGNS.
UNLESS THE CONTEXT IN
WHICH USED HEREIN OTHERWISE CLEARLY REQUIRES, "OR" HAS THE INCLUSIVE MEANING
REPRESENTED BY THE PHRASE "AND/OR."
ALL INCORPORATIONS BY REFERENCE OF
COVENANTS, TERMS, DEFINITIONS OR OTHER PROVISIONS FROM OTHER AGREEMENTS ARE
INCORPORATED INTO THIS AGREEMENT AS IF SUCH PROVISIONS WERE FULLY SET FORTH
HEREIN, AND INCLUDE ALL NECESSARY INFORMATION AND RELATED PROVISIONS FROM SUCH
OTHER AGREEMENTS, AND ALL SUCH COVENANTS, TERMS, DEFINITIONS OR OTHER PROVISIONS
FROM OTHER AGREEMENTS INCORPORATED INTO THIS AGREEMENT BY REFERENCE SHALL
SURVIVE ANY TERMINATION OF SUCH OTHER AGREEMENTS UNTIL THE SENIOR DEBT HAS BEEN
PAID IN FULL AND ALL FINANCING ARRANGEMENTS BETWEEN THE BORROWERS AND THE SENIOR
CREDITORS SHALL HAVE BEEN TERMINATED.
SECTION 2.
STANDBY; SUBORDINATION; STANDBY; SUBORDINATION.
2.1
THE PAYMENT AND PERFORMANCE OF THE SUBORDINATED DEBT IS HEREBY
SUBORDINATED TO THE PAYMENT AND PERFORMANCE OF THE SENIOR DEBT, AND, EXCEPT AS
SET FORTH IN SECTION 3 BELOW, THE JUNIOR CREDITOR WILL NOT ASK, DEMAND, SUE FOR,
TAKE OR RECEIVE FROM ANY BORROWER OR ANY OTHER PERSON LIABLE FOR ALL OR ANY PART
OF THE SENIOR DEBT, BY SETOFF OR IN ANY OTHER MANNER, THE WHOLE OR ANY PART OF
THE SUBORDINATED DEBT, OR ANY MONIES WHICH MAY NOW OR HEREAFTER BE OWING IN
RESPECT OF THE SUBORDINATED DEBT (WHETHER SUCH AMOUNTS REPRESENT PRINCIPAL OR
INTEREST, OR OBLIGATIONS WHICH ARE DUE