TRIAL BY JURY.
(D)
ADVICE OF COUNSEL.
EACH OF THE PARTIES
REPRESENTS TO EACH OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND,
SPECIFICALLY, THE PROVISIONS OF SECTION 10.7 AND THIS SECTION 10.13, WITH ITS
COUNSEL.
10.13
SUBORDINATION OF INTERCOMPANY INDEBTEDNESS.
THE
BORROWER AGREES THAT ANY AND ALL CLAIMS OF THE BORROWER AGAINST ANY OF ITS
SUBSIDIARY GUARANTORS WITH RESPECT TO ANY INDEBTEDNESS OF ANY SUBSIDIARY
GUARANTOR TO THE BORROWER ("INTERCOMPANY INDEBTEDNESS"), ANY ENDORSER, OBLIGOR
OR ANY OTHER SUBSIDIARY GUARANTOR OF ALL OR ANY PART OF THE OBLIGATIONS, OR
74
AGAINST ANY OF ITS PROPERTIES, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING
FROM LIENS OR SECURITY INTERESTS UPON PROPERTY, SHALL BE SUBORDINATE AND SUBJECT
IN RIGHT OF PAYMENT TO THE PRIOR PAYMENT, IN FULL AND IN CASH, OF ALL
OBLIGATIONS: PROVIDED THAT, AND NOT IN CONTRAVENTION OF THE FOREGOING, SO LONG
AS NO DEFAULT HAS OCCURRED AND IS CONTINUING THE BORROWER MAY MAKE LOANS TO AND
RECEIVE PAYMENTS IN THE ORDINARY COURSE WITH RESPECT TO SUCH INTERCOMPANY
INDEBTEDNESS FROM EACH SUCH SUBSIDIARY GUARANTOR TO THE EXTENT PERMITTED BY THE
TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SHOULD ANY PAYMENT,
DISTRIBUTION, SECURITY OR INSTRUMENT OR PROCEEDS THEREOF BE RECEIVED BY THE
BORROWER UPON OR WITH RESPECT TO THE INTERCOMPANY INDEBTEDNESS IN CONTRAVENTION
OF THIS AGREEMENT OR THE LOAN DOCUMENTS OR AFTER THE OCCURRENCE OF A DEFAULT,
INCLUDING, WITHOUT LIMITATION, AN EVENT DESCRIBED IN SECTION 8.1(F) OR (G) PRIOR
TO THE SATISFACTION OF ALL OF THE OBLIGATIONS (OTHER THAN CONTINGENT INDEMNITY
OBLIGATIONS) AND THE TERMINATION OF ALL FINANCING ARRANGEMENTS PURSUANT TO ANY
LOAN DOCUMENT OR HEDGING AGREEMENT AMONG THE BORROWER AND THE LENDER (AND ITS
AFFILIATES), THE BORROWER SHALL RECEIVE AND HOLD THE SAME IN TRUST, AS TRUSTEE,
FOR THE BENEFIT OF THE HOLDERS OF THE OBLIGATIONS AND SHALL FORTHWITH DELIVER
THE SAME TO THE LENDER, FOR THE BENEFIT OF SUCH PERSONS, IN PRECISELY THE FORM
RECEIVED (EXCEPT FOR THE ENDORSEMENT OR ASSIGNMENT OF THE BORROWER WHERE
NECESSARY), FOR APPLICATION TO ANY OF THE OBLIGATIONS, DUE OR NOT DUE, AND,
UNTIL SO DELIVERED, THE SAME SHALL BE HELD IN TRUST BY THE BORROWER AS THE
PROPERTY OF THE HOLDERS OF THE OBLIGATIONS.
IF THE BORROWER FAILS TO MAKE ANY
SUCH ENDORSEMENT OR ASSIGNMENT TO THE LENDER, THE LENDER OR ANY OF ITS OFFICERS
OR EMPLOYEES ARE IRREVOCABLY AUTHORIZED TO MAKE THE SAME.
THE BORROWER AGREES
THAT UNTIL THE OBLIGATIONS INVOLVING THE PAYMENT OF MONIES (OTHER THAN THE
CONTINGENT INDEMNITY OBLIGATIONS) HAVE BEEN PAID IN FULL (IN CASH) AND SATISFIED
AND ALL FINANCING ARRANGEMENTS PURSUANT TO ANY LOAN DOCUMENT OR HEDGING
AGREEMENT AMONG THE BORROWER AND THE LENDERS (AND ITS AFFILIATES) HAVE BEEN
TERMINATED, THE BORROWER WILL NOT ASSIGN OR TRANSFER TO ANY PERSON (OTHER THAN
THE LENDER) ANY CLAIM THE BORROWER HAS OR MAY HAVE AGAINST ANY SUBSIDIARY
GUARANTOR.
10.14
Assignability.
The Lender may at any time assign the
Lender rights in this Agreement, the Note, the Obligations, or any part thereof
and transfer the Lender's rights in any or