Common use of No Prepayment of Subordinated Debt Clause in Contracts

No Prepayment of Subordinated Debt. Unless (x) the Leverage Ratio shall be equal to or less than 3.50:1, as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or (y) irrespective of whether the preceding clause (x) is applicable, an Investment Grade Period shall have commenced at any time following the Restatement Effective Date (irrespective of whether such Investment Grade Period shall have ended), the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment or other distribution (whether in cash or other property) of principal of, or premium or interest on, any Subordinated Debt; (ii) cancel, redeem, retire, purchase, defease, terminate or otherwise acquire any Subordinated Debt; or (iii) make any deposit (including the payment of amounts into a sinking fund or other similar fund) for any of the foregoing purposes, except: (a) on the stated, scheduled date for payment of interest (and in the amount) set forth in the applicable Subordinated Debt Documents; (b) which would not violate the terms of this Agreement or the applicable Subordinated Debt Documents; and (c) refinancings of such Indebtedness, including accrued and unpaid interest thereon, with other Subordinated Debt or with Refinancing Indebtedness in respect to such Subordinated Indebtedness; provided, that the terms of such Subordinated Debt or Refinancing Indebtedness following such refinancing shall not, when taken as a whole, be materially less favorable to the Borrower or its Subsidiary (as applicable) than the terms of indebtedness of the same type issued or incurred by similarly rated borrowers. Furthermore, neither the Borrower nor any Subsidiary will designate any Indebtedness other than the Obligations as “Designated Senior Debt” (or any analogous term) in any Subordinated Debt Document. The terms of this Section shall not apply to Indebtedness owing by and among the Borrower and its Subsidiaries, which Indebtedness shall be governed by the Interco Subordination Agreement.

No Prepayment of Subordinated Debt. Unless (x) the Leverage Ratio shall be equal to or less than 3.50:1, as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or (y) irrespective of whether the preceding clause (x) is applicable, an Investment Grade Period shall have commenced at any time following the Restatement Effective Date (irrespective of whether such Investment Grade Period shall have ended), the The Borrower will not, and will not permit any of its Restricted Subsidiaries to, , (i) make any payment or prepayment or other distribution (whether in cash or other property) of principal of, or premium or interest on, any Subordinated Debt described in clause (f) of Section 7.2.2, other than the stated, scheduled date for payment of interest set forth in the applicable Subordinated Debt Documents with respect to such Subordinated Debt; , or (ii) cancelmake any payment or prepayment of principal of, or premium or interest on, or any other obligation in respect of, any Subordinated Debt which would violate the terms of this Agreement or the applicable Subordinated Debt Documents; (b) redeem, retire, purchase, defease, terminate defease or otherwise acquire any Subordinated Debt, except to the extent any such redemption is otherwise permitted under clause (b) of Section 7.2.6; or or (iiic) make any deposit (including the payment of amounts into a sinking fund or other similar fund) for any of the foregoing purposes, except: (a) on the stated, scheduled date for payment of interest (and in the amount) set forth in the applicable Subordinated Debt Documents; (b) which would not violate the terms of this Agreement or the applicable Subordinated Debt Documents; and (c) refinancings of such Indebtedness, including accrued and unpaid interest thereon, with other Subordinated Debt or with Refinancing Indebtedness in respect to such Subordinated Indebtedness; provided, however, that the terms of such Subordinated Debt or Borrower may effect at any time a Permitted Refinancing Indebtedness following such refinancing shall not, when taken as a whole, be materially less favorable to the Borrower or its Subsidiary (as applicable) than the terms of indebtedness of the same type issued or incurred by similarly rated borrowersaggregate principal amount outstanding at such time of the Subordinated Notes. Furthermore, neither the Borrower nor any Restricted Subsidiary will (i) designate any Indebtedness other than the Obligations as “"Designated Senior Debt” " (or any analogous term) in any Subordinated Debt Document. The terms Document or (ii) provide the trustee under the Subordinated Note Indenture with any notice of this default / "payment blockage notice" described in clause (ii) of Section shall not apply to Indebtedness owing by and among 10.03(a) of the Borrower and its Subsidiaries, which Indebtedness shall be governed by the Interco Subordination AgreementSubordinated Note Indenture.

No Prepayment of Subordinated Debt. Unless (x) the Leverage Ratio shall be equal to or less than 3.50:1, as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or (y) irrespective of whether the preceding clause (x) is applicable, an Investment Grade Period shall have commenced at any time following the Restatement Effective Date (irrespective of whether such Investment Grade Period shall have ended), the The Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment or other distribution (whether in cash or other property) of principal of, or premium or interest on, any Subordinated Debt; (ii) cancel, redeem, retire, purchase, defease, terminate or otherwise acquire any Subordinated Debt; or (iii) make any deposit (including the payment of amounts into a sinking fund or other similar fund) for any of the foregoing purposes, except: (a) on the stated, scheduled date for payment of interest (and in the amount) set forth in the applicable Subordinated Debt Documents; (b) which would not violate the terms of this Agreement or the applicable Subordinated Debt Documents; and (c) refinancings of such Indebtedness, including accrued and unpaid interest thereon, with other Subordinated Debt or with Refinancing Indebtedness in respect to such Subordinated Indebtedness; provided, that the terms of such Subordinated Debt or Refinancing Indebtedness following such refinancing shall not, when taken as a whole, be materially less favorable to the Borrower or its Subsidiary (as applicable) than the terms of indebtedness of the same type issued or incurred by similarly rated borrowers. Furthermore, neither the Borrower nor any Subsidiary will designate any Indebtedness other than the Obligations as “Designated Senior Debt” (or any analogous term) in any Subordinated Debt Document. The terms of this Section shall not apply to Indebtedness owing by and among the Borrower and its Subsidiaries, which Indebtedness shall be governed by the Interco Subordination Agreement.

No Prepayment of Subordinated Debt. Unless (x) the Leverage Ratio shall be equal to or less than 3.50:1, as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or (y) irrespective of whether the preceding clause (x) is applicable, an Investment Grade Period shall have commenced at any time following the Restatement Effective Date (irrespective of whether such Investment Grade Period shall have ended), the Holdings and each Borrower will not, and will not permit any of its their respective Subsidiaries to, , (ia) make any payment or prepayment or other distribution (whether in cash or other property) of principal of, or premium or interest on, any Subordinated Debt; Debt (i) other than payments of interest on the stated, scheduled date for payment of interest set forth in the applicable Sub Debt Documents or (ii) cancel, which would violate the terms of this Agreement or the applicable Sub Debt Documents; (b) redeem, retire, purchase, defease, terminate defease or otherwise acquire any Subordinated DebtDebt (including, in -118- the case of each Borrower and each of their respective Subsidiaries, by way of issuing notes evidencing Subordinated Debt in exchange for Subordinated Notes of Holdings); PROVIDED, HOWEVER, that following the making of any mandatory prepayment required under CLAUSE (h) of SECTION 3.1.1 in respect of Net Equity Proceeds and so long as no Specified Default shall have occurred and be continuing on the date such redemption, retirement, purchase, defeasance or other acquisition is declared or made, or a Specified Default would result from the consummation thereof, Holdings and the Borrowers may redeem, retire, purchase, defease or otherwise acquire up to 35% of the Subordinated Notes using such Net Equity Proceeds remaining following such mandatory prepayment in an amount not to exceed the excess of (iiix) the amount Net Equity Proceeds remaining from such mandatory prepayment over (y) the amount of any such Net Equity Proceeds used to redeem any PIK Preferred Equity and cancel the warrants issued in connection therewith pursuant to CLAUSE (g) of SECTION 7.2.6; or (c) make any deposit (including the payment of amounts into a sinking fund or other similar fund) for any of the foregoing purposes, except: (a) on the stated, scheduled date for payment of interest (and in the amount) set forth in the applicable Subordinated Debt Documents; (b) which would not violate the terms of this Agreement or the applicable Subordinated Debt Documents; and (c) refinancings of such Indebtedness, including accrued and unpaid interest thereon, with other Subordinated Debt or with Refinancing Indebtedness in respect to such Subordinated Indebtedness; provided, that the terms of such Subordinated Debt or Refinancing Indebtedness following such refinancing shall not, when taken as a whole, be materially less favorable to the Borrower or its Subsidiary (as applicable) than the terms of indebtedness of the same type issued or incurred by similarly rated borrowers. Furthermore, neither the Borrower nor any Subsidiary will designate any Indebtedness other than the Obligations as “Designated Senior Debt” (or any analogous term) in any Subordinated Debt Document. The terms of this Section shall not apply to Indebtedness owing by and among the Borrower and its Subsidiaries, which Indebtedness shall be governed by the Interco Subordination Agreement.

No Prepayment of Subordinated Debt. Unless (x) the Leverage Ratio shall be equal to or less than 3.50:1, as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or (y) irrespective of whether the preceding clause (x) is applicable, an Investment Grade Period shall have commenced at any time following the Restatement Effective Date (irrespective of whether such Investment Grade Period shall have ended), the The Borrower will not, and will not permit any of its Subsidiaries to, , (ia) make any payment or prepayment or other distribution (whether in cash or other property) of principal of, or premium or interest on, any Subordinated Debt; Debt (i) other than (x) the stated, scheduled payment of interest and, in the case of any Permitted Seller Notes, principal set forth in the applicable Subordinated Debt Documents, (y) so long as (A) at the time of such payment or prepayment there shall exist no Default or Event of Default, (B) the Borrower shall have delivered to the Administrative Agent a Compliance Certificate for the period of four full Fiscal Quarters immediately preceding such payment or prepayment (prepared in good faith and in a manner and using such methodology which is consistent with the most recent financial statements delivered pursuant to Section 7.1.1) giving pro forma effect to such payment or prepayment and evidencing compliance with the covenants set forth in Section 7.2.4 and a pro forma Leverage Ratio as of the last day of such period of not more than 2.00:1.0, in each case, as of the last day of such period, and (C) after giving effect to such payment or prepayment at least $25,000,000 of the Revolving Loan Commitment Amount would be unused, payments and prepayments that, when aggregated with (i) all Restricted Payments previously made after the Effective Date pursuant to Section 7.2.6(e) and (ii) cancelwithout duplication payments of principal of, and premium and interest on, Subordinated Debt previously made after the Effective Date pursuant to this Section 7.2.8(a)(i)(y), do not exceed an amount equal to 25% of the cumulative positive Net Income of the Borrower and its Subsidiaries for the period from January 1, 2001 through the end of the most recent Fiscal Quarter or Fiscal Year for which the Borrower has delivered the financial statements required pursuant to Section 7.1.1(a) or (b) and (z) so long as at the time of such payment or prepayment there shall exist no Default, other payments and prepayments in an aggregate amount not to exceed $10,000,000 over the term of this Agreement, or (ii) which would violate the terms of this Agreement or the applicable Subordinated Debt Documents; (b) except as permitted by clause (a), redeem, retire, purchase, defease, terminate defease or otherwise acquire any Subordinated Debt; or or (iiic) expect as permitted by clause (a), make any deposit (including the payment of amounts into a sinking fund or other similar fund) for any of the foregoing purposes, except: (a) on the stated, scheduled date for payment of interest (and in the amount) set forth in the applicable Subordinated Debt Documents; (b) which would not violate the terms of this Agreement or the applicable Subordinated Debt Documents; and (c) refinancings of such Indebtedness, including accrued and unpaid interest thereon, with other Subordinated Debt or with Refinancing Indebtedness in respect to such Subordinated Indebtedness; provided, that the terms of such Subordinated Debt or Refinancing Indebtedness following such refinancing shall not, when taken as a whole, be materially less favorable to the Borrower or its Subsidiary (as applicable) than the terms of indebtedness of the same type issued or incurred by similarly rated borrowers. Furthermore, neither the Borrower nor any Subsidiary will designate any Indebtedness other than the Obligations as “Designated Senior Debt” (or any analogous term) in any Subordinated Debt Document. The terms of this Section shall not apply to Indebtedness owing by and among the Borrower and its Subsidiaries, which Indebtedness Transactions shall be governed by the Interco Subordination Agreementpermitted.

No Prepayment of Subordinated Debt. Unless (x) the Leverage Ratio shall be equal to or less than 3.50:1, as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or (y) irrespective of whether the preceding clause (x) is applicable, an Investment Grade Period shall have commenced at any time following the Restatement Effective Date (irrespective of whether such Investment Grade Period shall have ended), the Holdings and each Borrower will not, and will not permit any of its their respective Subsidiaries to, , (ia) make any payment or prepayment or other distribution (whether in cash or other property) of principal of, or premium or interest on, any Subordinated Debt; Debt (i) other than payments of interest on the stated, scheduled date for payment of interest set forth in the applicable Sub Debt Documents or (ii) cancel, which would violate the terms of this Agreement or the applicable Sub Debt Documents; (b) redeem, retire, purchase, defease, terminate defease or otherwise acquire any Subordinated DebtDebt (including, in the case of each Borrower and each of their respective Subsidiaries, by way of issuing notes evidencing Subordinated Debt in exchange for Subordinated Notes of Holdings); provided, however, that following the making of any mandatory prepayment required under clause (h) of Section 3.1.1 in respect of Net Equity Proceeds and so long as no Specified Default shall have occurred and be continuing on the date such redemption, retirement, purchase, defeasance or other acquisition is declared or made, or a Specified Default would result from the consummation thereof, Holdings and the Borrowers may redeem, retire, purchase, defease or otherwise acquire up to 35% of the Subordinated Notes using such Net Equity Proceeds remaining following such mandatory prepayment in an amount not to exceed the excess of (iiix) the amount Net Equity Proceeds remaining from such mandatory prepayment over (y) the amount of any such Net Equity Proceeds used to redeem any PIK Preferred Equity and cancel the warrants issued in connection therewith pursuant to clause (g) of Section 7.2.6; or (c) make any deposit (including the payment of amounts into a sinking fund or other similar fund) for any of the foregoing purposes, except: (a) on the stated, scheduled date for payment of interest (and in the amount) set forth in the applicable Subordinated Debt Documents; (b) which would not violate the terms of this Agreement or the applicable Subordinated Debt Documents; and (c) refinancings of such Indebtedness, including accrued and unpaid interest thereon, with other Subordinated Debt or with Refinancing Indebtedness in respect to such Subordinated Indebtedness; provided, that the terms of such Subordinated Debt or Refinancing Indebtedness following such refinancing shall not, when taken as a whole, be materially less favorable to the Borrower or its Subsidiary (as applicable) than the terms of indebtedness of the same type issued or incurred by similarly rated borrowers. Furthermore, neither the Borrower nor any Subsidiary will designate any Indebtedness other than the Obligations as “Designated Senior Debt” (or any analogous term) in any Subordinated Debt Document. The terms of this Section shall not apply to Indebtedness owing by and among the Borrower and its Subsidiaries, which Indebtedness shall be governed by the Interco Subordination Agreement.

No Prepayment of Subordinated Debt. Unless (x) the Leverage Ratio shall be equal to or less than 3.50:1, as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or (y) irrespective of whether the preceding clause (x) is applicable, an Investment Grade Period shall have commenced at any time following the Restatement Effective Date (irrespective of whether such Investment Grade Period shall have ended), the The Borrower will not, and will not permit any of its Subsidiaries to, , (ia) make any payment or prepayment or other distribution (whether in cash or other property) of principal of, or premium or interest on, any Subordinated Debt; Debt (i) other than (x) the stated, scheduled payment of interest and, in the case of any Permitted Seller Notes, principal set forth in the applicable Subordinated Debt Documents, (y) so long as (A) at the time of such payment or prepayment there shall exist no Default or Event of Default, (B) the Borrower shall have delivered to the Administrative Agent a Compliance Certificate for the period of four full Fiscal Quarters immediately preceding such payment or prepayment (prepared in good faith and in a manner and using such methodology which is consistent with the most recent financial statements delivered pursuant to Section 7.1.1) giving pro forma effect to such payment or prepayment and evidencing compliance with the covenants set forth in Section 7.2.4 and a pro forma Leverage Ratio as of the last day of such period of not more than 2.00:1.0, in each case, as of the last day of such period, and (C) after giving effect to such payment or prepayment at least $25,000,000 of the Revolving Loan Commitment Amount would be unused, payments and prepayments that, when aggregated with (1) all Restricted Payments previously made after the Effective Date pursuant to Section 7.2.6(e) and (2) without duplication payments of principal of, and premium and interest on, Subordinated Debt previously made after the Effective Date pursuant to this Section 7.2.8(a)(i)(y), do not exceed an amount equal to 25% of the cumulative positive Net Income of the Borrower and its Subsidiaries for the period from January 1, 2001 through the end of the most recent Fiscal Quarter or Fiscal Year for which the Borrower has delivered the financial statements required pursuant to Section 7.1.1(a) or (b) and (z) so long as at the time of such payment or prepayment there shall exist no Default, other payments and prepayments in an aggregate amount not to exceed 86 120 $10,000,000 over the term of this Agreement, or (ii) cancelwhich would violate the terms of this Agreement or the applicable Subordinated Debt Documents; (b) except as permitted by clause (a), redeem, retire, purchase, defease, terminate defease or otherwise acquire any Subordinated Debt; or or (iiic) expect as permitted by clause (a), make any deposit (including the payment of amounts into a sinking fund or other similar fund) for any of the foregoing purposes, except: (a) on the stated, scheduled date for payment of interest (and in the amount) set forth in the applicable Subordinated Debt Documents; (b) which would not violate the terms of this Agreement or the applicable Subordinated Debt Documents; and (c) refinancings of such Indebtedness, including accrued and unpaid interest thereon, with other Subordinated Debt or with Refinancing Indebtedness in respect to such Subordinated Indebtedness; provided, that the terms of such Subordinated Debt or Refinancing Indebtedness following such refinancing shall not, when taken as a whole, be materially less favorable to the Borrower or its Subsidiary (as applicable) than the terms of indebtedness of the same type issued or incurred by similarly rated borrowers. Furthermore, neither the Borrower nor any Subsidiary will designate any Indebtedness other than the Obligations as “Designated Senior Debt” (or any analogous term) in any Subordinated Debt Document. The terms of this Section shall not apply to Indebtedness owing by and among the Borrower and its Subsidiaries, which Indebtedness Transactions shall be governed by the Interco Subordination Agreementpermitted.

No Prepayment of Subordinated Debt. Unless (x) the Leverage Ratio shall be equal to or less than 3.50:1, as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or (y) irrespective of whether the preceding clause (x) is applicable, an Investment Grade Period shall have commenced at any time following the Restatement Effective Date (irrespective of whether such Investment Grade Period shall have ended), the The Borrower will not, and will not permit any of its Restricted Subsidiaries to, , (i) make any payment or prepayment or other distribution (whether in cash or other property) of principal of, or premium or interest on, any Subordinated Debt described in clause (k) of Section 7.2.2, other than the stated, scheduled date for payment of interest set forth in the applicable Subordinated Debt Documents with respect to such Subordinated Debt; , or (ii) cancelmake any payment or prepayment of principal of, or premium or interest on, or any other obligation in respect of, any Subordinated Debt which would violate the terms of this Agreement or the applicable Subordinated Debt Documents; (b) redeem, retire, purchase, defease, terminate defease or otherwise acquire any Subordinated Debt, except to the extent any such redemption is otherwise permitted under clause (b) of Section 7.2.6; or or (iiic) make any deposit (including the payment of amounts into a sinking fund or other similar fund) for any of the foregoing purposes, except: (a) on the stated, scheduled date for payment of interest (and in the amount) set forth in the applicable Subordinated Debt Documents; (b) which would not violate the terms of this Agreement or the applicable Subordinated Debt Documents; and (c) refinancings of such Indebtedness, including accrued and unpaid interest thereon, with other Subordinated Debt or with Refinancing Indebtedness in respect to such Subordinated Indebtedness; provided, however, that the terms of such Subordinated Debt or Borrower may effect at any time a Permitted Refinancing Indebtedness following such refinancing shall not, when taken as a whole, be materially less favorable to the Borrower or its Subsidiary (as applicable) than the terms of indebtedness of the same type issued or incurred by similarly rated borrowersaggregate principal amount outstanding at such time of the Subordinated Notes. Furthermore, neither the Borrower nor any Restricted Subsidiary will (i) designate any Indebtedness other than the Obligations as “"Designated Senior Debt” " (or any analogous term) in any Subordinated Debt Document. The terms Document or (ii) provide the trustee under the Subordinated Note Indenture with any notice of this default / "payment blockage notice" described in clause (ii) of Section shall not apply to Indebtedness owing by and among 10.03(a) of the Borrower and its Subsidiaries, which Indebtedness shall be governed by the Interco Subordination AgreementSubordinated Note Indenture.

No Prepayment of Subordinated Debt. Unless (x) the Leverage Ratio shall be equal to or less than 3.50:1, Except as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or (y) irrespective of whether the preceding permitted under clause (xi) is applicable, an Investment Grade Period shall have commenced at any time following of Section 7.2.2 and the Restatement Effective Date (irrespective final sentence of whether such Investment Grade Period shall have ended)this Section 7.2.16, the Borrower Borrowers will not, and will not permit any of its their respective Subsidiaries to, , (ia) make any payment or prepayment or other distribution (whether in cash or other property) of principal of, or premium or interest (including cash interest) on, any Subordinated Debt; Debt (i) other than the stated, scheduled date for payment of interest set forth in the applicable Sub Debt Documents or (ii) cancel, which would violate the terms of this Agreement or the applicable Sub Debt Documents; (b) redeem, retire, purchase, defease, terminate defease or otherwise acquire any Subordinated DebtDebt other than with the proceeds of the issuance of any Capital Securities by the U.S. Borrower in accordance with the last sentence hereof; or or (iiic) make any deposit (including the payment of amounts into a sinking fund or other similar fund) for any of the foregoing purposes, except: (a) on the stated, scheduled date for payment of interest (and in the amount) set forth in the applicable Subordinated Debt Documents; (b) which would not violate the terms of this Agreement or the applicable Subordinated Debt Documents; and (c) refinancings of such Indebtedness, including accrued and unpaid interest thereon, with other Subordinated Debt or with Refinancing Indebtedness in respect to such Subordinated Indebtedness; provided, that the terms of such Subordinated Debt or Refinancing Indebtedness following such refinancing shall not, when taken as a whole, be materially less favorable to the Borrower or its Subsidiary (as applicable) than the terms of indebtedness of the same type issued or incurred by similarly rated borrowers. Furthermore, neither the Borrower Borrowers nor any of their respective Subsidiary will designate any Indebtedness other than the Obligations as “Designated Senior Debt” (or any analogous term) in any Subordinated Sub Debt Document. The terms In addition to the Borrowers’ right to under clause (i) of Section 7.2.2, prepayment or other redemption of Subordinated Debt shall be permitted if either (i) the Leverage Ratio, on a pro forma basis after giving effect to such prepayment or other redemption, does not exceed 2.75:1 or (ii) (A) the Senior Leverage Ratio, on a pro forma basis after giving effect to such prepayment or other redemption, does not exceed 3.0:1 and (B) if (1) the Equity Issuance shall have occurred, only up to an aggregate amount of $$/BREAK/$$END $250,000,000 of such Subordinated Debt may be prepaid or redeemed during the term of this Section Agreement or (2) the Equity Issuance shall not apply have occurred, only up to Indebtedness owing by and among an aggregate amount of $150,000,000 of such Subordinated Debt may be prepaid or redeemed during the Borrower and its Subsidiariesterm of this Agreement; provided, which Indebtedness however, in the case of either (B)(1) or (2), such aggregate amounts shall be governed reduced on a Dollar for Dollar basis by the Interco Subordination Agreementexcess of (x) the aggregate amount of Permitted Acquisitions made during the term of this Agreement in accordance with clause (h) of Section 7.2.5.

No Prepayment of Subordinated Debt. Unless (x) the Leverage Ratio shall be equal to or less than 3.50:1, as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or (y) irrespective of whether the preceding clause (x) is applicable, an Investment Grade Period shall have commenced at any time following the Restatement Effective Date (irrespective of whether such Investment Grade Period shall have ended), the The Borrower will not, ---------------------------------- and will not permit any of its Subsidiaries to, , (ia) make any payment or prepayment or other distribution (whether in cash or other property) of principal of, or premium or interest on, any Subordinated Debt (i) other than the stated, scheduled date for such payment of principal and interest set forth in the Subordinated Debt Documents governing such Subordinated Debt; , or (ii) cancel, which would violate the terms of this Agreement or the Subordinated Debt Documents governing such Subordinated Debt; (b) redeem, retire, purchase, defease, terminate refinance or otherwise acquire any Subordinated Debt; or or (iiic) make any deposit (including the payment of amounts into a sinking fund or other similar fund) for any of the foregoing purposes; provided, except: -------- however, that the Borrower may (ai) pay the principal of the Convertible ------- Subordinated Notes on the statedstated maturity date thereof of May 1, scheduled date for payment 2003, (ii) redeem the Convertible Subordinated Notes with Excluded Equity Proceeds, (iii) issue shares of interest (and its common stock conversion of any or all of the Convertible Subordinated Notes in the amount) set forth in the applicable Subordinated Debt Documents; (b) which would not violate accordance with the terms of this Agreement or the applicable Subordinated Debt Documents; and Documents relating to the Convertible Subordinated Notes and (civ) refinancings effect the Refinancing of such Indebtedness, including accrued and unpaid interest thereon, with other the principal of the Convertible Subordinated Debt or with Refinancing Indebtedness in respect to such Subordinated Indebtedness; provided, Notes (provided that the terms of such Subordinated Debt or Refinancing Indebtedness following such refinancing shall not, when taken as a whole, be materially less favorable to the Borrower or its Subsidiary (as applicable) than the terms of indebtedness final maturity date of the same type issued or incurred by similarly rated borrowers. Furthermore, neither the Borrower nor any Subsidiary will designate any refinancing Indebtedness other than the Obligations as “Designated Senior Debt” (or any analogous term) in any Subordinated Debt Document. The terms of this Section shall not apply to Indebtedness owing by and among the Borrower and its Subsidiariesbe earlier than December 31, which Indebtedness shall be governed by the Interco Subordination Agreement2006.