CONTEXT OTHERWISE REQUIRES:
(I)
THE TERMS DEFINED IN THIS AGREEMENT HAVE THE MEANINGS ASSIGNED TO
THEM IN THIS AGREEMENT;
(II)
"OR" IS NOT EXCLUSIVE;
(III)
ALL ACCOUNTING TERMS NOT OTHERWISE DEFINED HEREIN HAVE THE
MEANINGS ASSIGNED TO THEM IN ACCORDANCE WITH GAAP (AS SUCH TERM IS DEFINED IN
THE SENIOR CREDIT AGREEMENT AS IN EFFECT ON THE DATE HEREOF);
(IV)
THE WORDS "HEREIN," "HEREOF" AND "HEREUNDER" AND OTHER WORDS OF
SIMILAR IMPORT REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO ANY PARTICULAR
SECTION OR OTHER SUBDIVISION;
(V)
ALL REFERENCES TO "$" OR "DOLLARS" SHALL REFER TO THE LAWFUL
CURRENCY OF THE UNITED STATES OF AMERICA;
(VI)
THE WORDS "INCLUDE," "INCLUDED" AND "INCLUDING" AS USED HEREIN
SHALL BE DEEMED IN EACH CASE TO BE FOLLOWED BY THE PHRASE "WITHOUT LIMITATION,"
IF NOT EXPRESSLY FOLLOWED BY SUCH PHRASE OR THE PHRASE "BUT NOT LIMITED TO";
(VII)
WORDS IN THE SINGULAR INCLUDE THE PLURAL, AND WORDS IN THE PLURAL
INCLUDE THE SINGULAR; AND
(VIII)
ANY REFERENCE TO A SECTION REFERS TO SUCH SECTION OF THIS
AGREEMENT.
(C)
HEADINGS.
SECTION AND SUBSECTION HEADINGS IN THIS AGREEMENT ARE
INCLUDED HEREIN FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONSTITUTE A
PART OF THIS AGREEMENT FOR ANY OTHER PURPOSE.
6
2.
SUBORDINATION; CERTAIN PAYMENTS RESTRICTED.
(A)
AGREEMENT TO SUBORDINATE.
EACH OBLIGOR AGREES, FOR ITSELF AND ITS
RESPECTIVE SUCCESSORS AND ASSIGNS, AND EACH SUBORDINATING CREDITOR AGREES, AND
EACH SUBORDINATED DEBTHOLDER BY ITS ACQUISITION AND ACCEPTANCE OF ANY NOTE OR
OTHER SUBORDINATED DEBT SHALL BE DEEMED TO HAVE AGREED, THAT THE PAYMENT OF THE
SUBORDINATED DEBT IS HEREBY SUBORDINATED IN RIGHT OF PAYMENT AS PROVIDED HEREIN
TO THE PRIOR PAYMENT IN FULL OF ALL SENIOR DEBT AND THE TERMINATION (EXCEPT IN
THE CONTEXT OF A PAYMENT OR DISTRIBUTION TO THE SUBORDINATED DEBTHOLDERS IN
RESPECT OF THE SUBORDINATED DEBT IN AN INSOLVENCY PROCEEDING OTHERWISE PERMITTED
HEREIN) OF ALL LENDING COMMITMENTS UNDER THE SENIOR CREDIT AGREEMENT.
UPON THE
FINAL MATURITY OF ANY SENIOR DEBT OR THE ACCELERATION THEREOF, NO OBLIGOR MAY
MAKE ANY PAYMENT OR DISTRIBUTION OF ANY KIND OR CHARACTER ON, OR IN RESPECT OF
ANY SUBORDINATED DEBT, OR ACQUIRE ANY SUBORDINATED DEBT FOR CASH OR PROPERTY OR
OTHERWISE, AND THE SUBORDINATED DEBTHOLDERS SHALL NOT RECEIVE OR ACCEPT ANY OF
THE FOREGOING (SUBJECT TO SECTION 5.(C)), WITHOUT THE PRIOR WRITTEN CONSENT OF
THE AGENT ON BEHALF OF THE SENIOR LENDERS, UNLESS AND UNTIL THE SENIOR DEBT AT
THE TIME OUTSTANDING HAS BEEN PAID IN FULL AND, EXCEPT IN THE CONTEXT OF A
PAYMENT OR DISTRIBUTION TO THE SUBORDINATED DEBTHOLDERS IN RESPECT OF THE
SUBORDINATED DEBT IN AN INSOLVENCY PROCEEDING, ALL LENDING COMMITMENTS UNDER THE
SENIOR CREDIT AGREEMENT HAVE BEEN TERMINATED. NOTWITHSTANDING ANY PROVISION OF
THE SUBORDINATED NOTE DOCUMENTS TO THE CONTRARY AND IN ADDITION TO ANY OTHER
LIMITATIONS SET FORTH HEREIN OR THEREIN, NO PAYMENT (WHETHER MADE IN CASH,
SECURITIES (OTHER THAN PERMITTED JUNIOR SECURITIES) OR OTHER PROPERTY OR BY
SET-OFF) WITH RESPECT TO THE SUBORDINATED DEBT SHALL BE MADE OR RECEIVED, AND NO
SUBORDINATED DEBTHOLDER