Common use of Standby; Subordination Clause in Contracts

Standby; Subordination. (a) Subordinated Creditor will not, directly or indirectly, demand, (including without limitation by commencing or joining with any other creditors of Borrower in commencing any bankruptcy, reorganization, receivership or insolvency proceeding against Borrower), take or receive from Borrower or any of Borrower's Affiliates, by set-off or in any other manner, the whole or any part of any monies which may now or hereafter be owing by Borrower, or any successor or assign of Borrower, including, without limitation, a receiver, trustee or debtor in possession (the term "BORROWER" hereinafter shall include any such successor or assign of Borrower), to Subordinated Creditor under any of the Subordinated Creditor Documents (whether such amounts represent principal, interest, fees, expenses, or any other obligations, whether due or not due, direct or indirect, absolute or contingent, including, without limitation, the taking of any negotiable instruments evidencing such amounts) (all such indebtedness obligations and liabilities being hereinafter included as the "SUBORDINATED OBLIGATIONS"),nor any security or guaranties for any of the foregoing unless and until all of the Obligations, and all other obligations, liabilities, and indebtedness of Borrower to Senior Creditor, whether now existing or hereafter arising between Borrower and Senior Creditor, directly, or acquired outright, conditionally or as collateral security from another by Senior Creditor, which are related to or arising out of loans, advances, or extensions of credit to Borrower or any of its Affiliates shall have been fully paid and satisfied with interest (all such obligations, indebtedness and liabilities of Borrower to Senior Creditor are hereinafter referred to as the "SENIOR INDEBTEDNESS") and all financing arrangements between Borrower and Senior Creditor, including the Commitment, have been terminated. (b) Subordinated Creditor agrees and covenants that none of the Subordinated Creditor Documents shall be modified or amended without Senior Creditor's prior written consent. (c) Notwithstanding anything to the contrary set forth in SECTION I(A) above, so long as no Default has occurred and is continuing or would exist after giving effect to any such payment, Borrower may make payments to Subordinated Creditor of accrued interest on the Subordinated Obligation. Additionally, so long as (i) no Default has occurred and is continuing, or would exist after giving effect to any such payment, and (ii) Borrower would be in compliance with the Pro Forma Fixed Charge Coverage Ratio set forth in SECTION 9.4 of the Loan Agreement on a pro forma basis after giving effect to any such payment (and Borrower delivers to Senior Creditor written evidence satisfactory to Senior Creditor of such compliance before any such payment is made), Borrower may make payments of principal on the Subordinated Obligations.

Standby; Subordination. (a) The payment and performance of the Subordinated Debt is hereby subordinated to the payment and performance of the Senior Debt, and the Junior Creditor will not, directly or indirectly, demand, (including without limitation by commencing or joining with any other creditors of Borrower in commencing any bankruptcy, reorganization, receivership or insolvency proceeding against Borrower), not take or receive from the Borrower or any other Person liable for all or any part of Borrower's Affiliatesthe Senior Debt, by set-off 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 by Borrower, or any successor or assign of Borrower, including, without limitation, a receiver, trustee or debtor in possession (the term "BORROWER" hereinafter shall include any such successor or assign of Borrower), to Subordinated Creditor under any respect of the Subordinated Creditor Documents Debt (whether such amounts represent principal, principal or interest, fees, expenses, or any other obligations, whether obligations which are due or not due, direct or indirect, absolute or contingent), including, without limitation, taking any security for any of the foregoing, or the taking of any negotiable instruments evidencing such amounts) (all such indebtedness obligations and liabilities being hereinafter included as the "SUBORDINATED OBLIGATIONS"),nor any security or guaranties for any of the foregoing instrument therefor, unless and until all of the Obligations, and all other obligations, liabilities, and indebtedness of Borrower to Senior Creditor, whether now existing or hereafter arising between Borrower and Senior Creditor, directly, or acquired outright, conditionally or as collateral security from another by Senior Creditor, which are related to or arising out of loans, advances, or extensions of credit to Borrower or any of its Affiliates Debt shall have been fully paid and satisfied with interest (all such obligations, indebtedness and liabilities of Borrower to Senior Creditor are hereinafter referred to as the "SENIOR INDEBTEDNESS") and all financing arrangements between the Borrower and Senior Creditor, including the Commitment, Creditor have been terminated. , except that the Junior Creditor may (bi) Subordinated accept scheduled payments (but not cash prepayments without the Senior's Creditor agrees and covenants that none of the Subordinated Creditor Documents shall be modified or amended without Senior Creditor's prior written consent. approval) of principal and interest required to be paid under that certain [INSERT TITLE OF SPECIFIC NOTE] (c) Notwithstanding anything to the contrary set forth in SECTION I(A) above"Junior Debt Instrument"), or convert the principal and interest into shares of Borrower's common stock is so permitted by the terms thereof , so long as no Event of Default has occurred and is continuing or would exist after giving effect to will occur as a result of or immediately following any such payment, (ii) take any against the Borrower may make payments or the property of the Borrower permissible under applicable law or the Junior Debt Instrument in the event of a material breach by the Borrower of its obligations under the Junior Debt Instrument , provided that in such event Junior Creditor shall first provide Senior Creditor with ten (10) business days prior written notice. All liens and security interests of the Junior Creditor in any assets of the Borrower or any assets securing the Senior Debt shall be and hereby are subordinated to Subordinated the rights and interests of the Senior Creditor, if any, in those assets. The Junior Creditor of accrued interest on warrants and agrees that (a) the Junior Creditor hereafter will not accept any additional security for the Subordinated Obligation. AdditionallyDebt from the Borrower, so long except pursuant to section 6.2.1 of the Secured Convertible Debenture between the Senior Creditor and the Borrower dated as of [_______] (the "Debenture Agreement"); and (b) in the event the Junior Creditor does obtain any additional security for the Subordinated Debt in violation thereof, (i) the Junior Creditor shall have no Default has occurred and is continuing, or would exist after giving effect right to possession of any such paymentassets or to foreclose upon any such assets, whether by judicial action or otherwise, unless and until all the Senior Debt shall have been fully paid and satisfied and all financing arrangements between the Borrower and Senior Creditor have been terminated, and (ii) Borrower would be in compliance with at the Pro Forma Fixed Charge Coverage Ratio set forth in SECTION 9.4 request of the Loan Agreement on a pro forma basis after giving effect Senior Creditor, the Junior Creditor shall execute and deliver to any such payment (and Borrower delivers to the Senior Creditor written evidence satisfactory to such termination statements and releases as the Senior Creditor shall reasonably request to release the Junior Creditor's additional security interest in or lien against such property. The Junior Creditor acknowledges and agrees that, to the extent the terms and provisions of this Agreement are inconsistent with any agreement or understanding between the Junior Creditor and the Borrower, such compliance before any such payment is made), Borrower may make payments of principal on the Subordinated Obligationsagreement or understanding shall be subject to this Agreement.

Standby; Subordination. (a) The payment and performance of the Subordinated Debt is hereby subordinated to the payment and performance in full of the Senior Debt, and, except as set forth in Section 3 below, the Junior Creditor will not, directly or indirectlynot ask, demand, (including without limitation by commencing or joining with any other creditors of Borrower in commencing any bankruptcy, reorganization, receivership or insolvency proceeding against Borrower)xxx for, take or receive from the Borrower or any other Person liable for all or any part of Borrower's Affiliatesthe Senior Debt, by set-off 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 by Borrower, or any successor or assign of Borrower, including, without limitation, a receiver, trustee or debtor in possession (the term "BORROWER" hereinafter shall include any such successor or assign of Borrower), to Subordinated Creditor under any respect of the Subordinated Creditor Documents Debt (whether such amounts represent principal, principal or interest, fees, expenses, or any other obligations, whether obligations which are due or not due, direct or indirect, absolute or contingent), including, without limitation, taking any additional security for any of the foregoing, or the taking of any negotiable instruments evidencing such amounts) (all such indebtedness obligations and liabilities being hereinafter included as the "SUBORDINATED OBLIGATIONS"),nor any security or guaranties for any of the foregoing instrument therefor, unless and until all of the Obligations, and all other obligations, liabilities, and indebtedness of Borrower to Senior Creditor, whether now existing or hereafter arising between Borrower and Senior Creditor, directly, or acquired outright, conditionally or as collateral security from another by Senior Creditor, which are related to or arising out of loans, advances, or extensions of credit to Borrower or any of its Affiliates Debt shall have been fully indefeasibly paid and satisfied with interest (all such obligations, indebtedness and liabilities of Borrower to Senior Creditor are hereinafter referred to as the "SENIOR INDEBTEDNESS") in full and all financing arrangements between the Borrower and Senior Creditor, including the Commitment, Creditor have been terminated. . The Junior Creditor warrants and represents and agrees that (ba) Subordinated Creditor agrees and covenants that none all Security Interests of the Subordinated Junior Creditor Documents in any assets of the Borrower or any assets securing the Senior Debt shall be modified or amended without and hereby are subordinated to the rights and interests of the Senior Creditor's prior written consent. , if any, in those assets, (cii) Notwithstanding anything the Junior Creditor shall have no right to the contrary set forth in SECTION I(A) above, so long as no Default has occurred and is continuing or would exist after giving effect to possession of any such payment, Borrower may make payments assets or to Subordinated Creditor of accrued interest on the Subordinated Obligation. Additionally, so long as (i) no Default has occurred and is continuing, or would exist after giving effect to foreclose upon any such paymentassets, whether by judicial action or otherwise, unless and until all the Senior Debt shall have been indefeasibly paid and satisfied in full and all financing arrangements between the Borrower and Senior Creditor have been terminated, and (iiiii) Borrower would be in compliance with at the Pro Forma Fixed Charge Coverage Ratio set forth in SECTION 9.4 request of the Loan Agreement on a pro forma basis after giving effect Senior Creditor, the Junior Creditor shall authorize, execute or deliver to any such payment (and Borrower delivers to the Senior Creditor written evidence satisfactory to such termination statements and releases as the Senior Creditor shall reasonably request to release the Junior Creditor's Security Interest in or against such property. The Junior Creditor, prior to the indefeasible payment in full and discharge of such compliance before the Senior Debt and the termination of all financing arrangements between the Borrower and the Senior Creditor, shall have no right to enforce any such payment is made), Borrower may make payments of principal on claim with respect to the Subordinated ObligationsDebt, or to take any action against the Borrower or the property of the Borrower or of any other Person liable for all or any part of the Senior Debt for the benefit of the Borrower. The Junior Creditor acknowledges and agrees that, to the extent the terms and provisions of this Agreement are inconsistent with any agreement or understanding between the Junior Creditor and the Borrower, such agreement or understanding shall be subject to this Agreement.

Standby; Subordination. (a) 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, directly or indirectlynot ask, demand, (including without limitation by commencing or joining with any other creditors of Borrower in commencing any bankruptcy, reorganization, receivership or insolvency proceeding against Borrower)sue for, take or receive from the Borrower or any other Person liablx xor all or any part of Borrower's Affiliatesthe Senior Debt, by set-off 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 by Borrower, or any successor or assign of Borrower, including, without limitation, a receiver, trustee or debtor in possession (the term "BORROWER" hereinafter shall include any such successor or assign of Borrower), to Subordinated Creditor under any respect of the Subordinated Creditor Documents Debt (whether such amounts represent principal, principal or interest, fees, expenses, or any other obligations, whether obligations which are due or not due, direct or indirect, absolute or contingent), including, without limitation, taking any security for any of the foregoing, or the taking of any negotiable instruments evidencing such amounts) (all such indebtedness obligations and liabilities being hereinafter included as the "SUBORDINATED OBLIGATIONS"),nor any security or guaranties for any of the foregoing instrument therefor, unless and until all of the Obligations, and all other obligations, liabilities, and indebtedness of Borrower to Senior Creditor, whether now existing or hereafter arising between Borrower and Senior Creditor, directly, or acquired outright, conditionally or as collateral security from another by Senior Creditor, which are related to or arising out of loans, advances, or extensions of credit to Borrower or any of its Affiliates Debt shall have been fully paid and satisfied with interest (all such obligations, indebtedness and liabilities of Borrower to Senior Creditor are hereinafter referred to as the "SENIOR INDEBTEDNESS") and all financing arrangements between the Borrower and Senior Creditor, including the Commitment, Creditor have been terminated. . The Junior Creditor warrants and represents that the Subordinated Debt is unsecured and agrees that (a) the Junior Creditor hereafter will not accept any security therefor from the Borrower, or from any third Person for the benefit of the Borrower; and (b) Subordinated in the event the Junior Creditor agrees and covenants that none of does obtain any security for the Subordinated Creditor Documents shall be modified or amended without Senior Creditor's prior written consent. (c) Notwithstanding anything to the contrary set forth in SECTION I(A) aboveDebt, so long as no Default has occurred and is continuing or would exist after giving effect to any such payment, Borrower may make payments to Subordinated Creditor of accrued interest on the Subordinated Obligation. Additionally, so long as (i) all liens and security interests of the Junior Creditor in any assets of the Borrower or any assets securing the Senior Debt shall be and hereby are subordinated to the rights and interests of the Senior Creditor, if any, in those assets, (ii) the Junior Creditor shall have no Default has occurred and is continuing, or would exist after giving effect right to possession of any such paymentassets or to foreclose upon any such assets, whether by judicial action or otherwise, unless and until all the Senior Debt shall have been fully paid and satisfied and all financing arrangements between the Borrower and Senior Creditor have been terminated, and (iiiii) Borrower would be in compliance with at the Pro Forma Fixed Charge Coverage Ratio set forth in SECTION 9.4 request of the Loan Agreement on a pro forma basis after giving effect Senior Creditor, the Junior Creditor shall execute and deliver to any such payment (and Borrower delivers to the Senior Creditor written evidence satisfactory to such termination statements and releases as the Senior Creditor shall reasonably request to release the Junior Creditor's security interest in or lien against such property. The Junior Creditor, prior to the payment in full and discharge of such compliance before the Senior Debt and the termination of all financing arrangements between the Borrower and the Senior Creditor, shall have no right to enforce any such payment is made), Borrower may make payments of principal on claim with respect to the Subordinated ObligationsDebt, or to take any action against the Borrower or the property of the Borrower or of any other Person liable for all or any part of the Senior Debt for the benefit of the Borrower. The Junior Creditor acknowledges and agrees that, to the extent the terms and provisions of this Agreement are inconsistent with any agreement or understanding between the Junior Creditor and the Borrower, such agreement or understanding shall be subject to this Agreement.

Standby; Subordination. (a) The payment and performance of the Subordinated Debt is hereby subordinated to the payment and performance in full of the Senior Debt, and, except as set forth in Section 3 below, neither the Junior Creditor nor the Senior Creditor will not, directly or indirectlyask, demand, (including without limitation by commencing or joining with any other creditors of Borrower in commencing any bankruptcy, reorganization, receivership or insolvency proceeding against Borrower)xxx for, take or receive from the Borrower or any other Person liable for all or any part of Borrower's Affiliatesthe Senior Debt, by set-off 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 by Borrower, or any successor or assign of Borrower, including, without limitation, a receiver, trustee or debtor in possession (the term "BORROWER" hereinafter shall include any such successor or assign of Borrower), to Subordinated Creditor under any respect of the Subordinated Creditor Documents Debt (whether such amounts represent principal, principal or interest, fees, expenses, or any other obligations, whether obligations which are due or not due, direct or indirect, absolute or contingent), including, without limitation, taking any additional security for any of the foregoing, or the taking of any negotiable instruments evidencing such amounts) (all such indebtedness obligations and liabilities being hereinafter included as the "SUBORDINATED OBLIGATIONS"),nor any security or guaranties for any of the foregoing instrument therefor, unless and until all of the Obligations, Senior Debt shall have been indefeasibly paid and satisfied in full and all other obligationsfinancing arrangements with respect to Senior Debt between the Borrower and Senior Creditor have been terminated. The Junior Creditor warrants and represents that his Subordinated Debt is secured solely pursuant to the May Security Agreement and agrees that (a) the Junior Creditor hereafter will not accept any additional security therefor from the Borrower, liabilities, or from any third Person for the benefit of the Borrower; and indebtedness (b) (i) all Security Interests of the Junior Creditor and the Senior Creditor in any assets of the Borrower or any assets securing the Senior Debt shall and hereby are subordinated to the rights and interests of the Senior Creditor, if any, in those assets to secure Senior Debt, (ii) the Junior Creditor shall have no right to possession of any such assets or to foreclose upon any such assets, whether now existing by judicial action or hereafter arising between Borrower otherwise, unless and until all the Senior Creditor, directly, or acquired outright, conditionally or as collateral security from another by Senior Creditor, which are related to or arising out of loans, advances, or extensions of credit to Borrower or any of its Affiliates Debt shall have been fully indefeasibly paid and satisfied with interest (all such obligations, indebtedness and liabilities of Borrower to Senior Creditor are hereinafter referred to as the "SENIOR INDEBTEDNESS") in full and all financing arrangements between the Borrower and Senior Creditor, including the Commitment, Creditor with respect to Senior Debt have been terminated. (b) Subordinated Creditor agrees and covenants that none of the Subordinated Creditor Documents shall be modified or amended without Senior Creditor's prior written consent. (c) Notwithstanding anything to the contrary set forth in SECTION I(A) above, so long as no Default has occurred and is continuing or would exist after giving effect to any such payment, Borrower may make payments to Subordinated Creditor of accrued interest on the Subordinated Obligation. Additionally, so long as (i) no Default has occurred and is continuing, or would exist after giving effect to any such payment, and (iiiii) Borrower would be in compliance with at the Pro Forma Fixed Charge Coverage Ratio set forth in SECTION 9.4 request of the Loan Agreement on a pro forma basis after giving effect Senior Creditor, the Junior Creditor shall authorize, execute or deliver to any the Senior Creditor such termination statements and releases as the Senior Creditor shall reasonably request to release the Junior Creditor’s Security Interest in or against such property. Neither the Junior Creditor or the Senior Creditor, prior to the indefeasible payment (in full and discharge of the Senior Debt and the termination of all financing arrangements between the Borrower delivers and the Senior Creditor with respect to Senior Creditor written evidence satisfactory Debt, shall have any right to Senior Creditor of such compliance before enforce any such payment is made), Borrower may make payments of principal on claim with respect to the Subordinated ObligationsDebt, or to take any action against the Borrower or the property of the Borrower or of any other Person liable for all or any part of the Senior Debt for the benefit of the Borrower to collect any Subordinated Debt. The Junior Creditor acknowledges and agrees that, to the extent the terms and provisions of this Agreement are inconsistent with any agreement or understanding between the Junior Creditor and the Borrower, such agreement or understanding shall be subject to this Agreement.

Standby; Subordination. Except for "Permitted Payments" (aas hereinafter defined) and for the exercise of rights as set forth in Section 4 hereof, all "Subordinated Creditor Debt" (as defined below) is hereby subordinated to all the "Senior Debt" (as defined below), and each Holder agrees that the Holder will not, directly or indirectlynot ask, demand, (including without limitation by commencing or joining with any other creditors of Borrower in commencing any bankruptcy, reorganization, receivership or insolvency proceeding against Borrower)xxx for, take or receive from Borrower or any of Borrower's Affiliatesthe Borrowers, by set-off setoff or in any other manner, the whole or any part of any monies which may now or hereafter be owing by Borrowerany of the Borrowers, including without limitation, monies owing by WTI under any of the Subordinate Documents, or any successor or assign of Borrowerany of the Borrowers, including, without limitation, a receiver, trustee or debtor in possession (the term "BORROWERBorrowers" hereinafter shall include any such successor or assign of Borrowerany of the Borrowers), to Subordinated Creditor under any Holders or be owing by any other person, firm, partnership or corporation for the benefit of any of the Subordinated Creditor Documents (whether such amounts represent principal, interest, fees, expenses, or any other obligations, whether due or not due, direct or indirect, absolute or contingentBorrowers, including, without limitation, the taking of any negotiable instruments evidencing such amounts) amounts (all such indebtedness indebtedness, obligations and liabilities being hereinafter included referred to as the "SUBORDINATED OBLIGATIONS"),nor any security or guaranties for any of the foregoing Subordinated Debt"), unless and until all of the Obligations, and all other obligations, liabilities, and indebtedness of Borrower to Senior Creditor, whether now existing or hereafter arising between Borrower and Senior Creditorarising, directlyincluding, or acquired outrightwithout limitation, conditionally or as collateral security from another by Senior Creditorthe undrawn face amount of all Letters of Credit, which are related to or arising out of loans, advances, or extensions of credit to Borrower or any of its Affiliates shall have been fully paid and satisfied with interest (all such obligationsObligations, indebtedness and liabilities of Borrower the Borrowers to Senior Creditor the Bank are hereinafter referred to as the "SENIOR INDEBTEDNESSSenior Debt") ), and all financing arrangements between Borrower and Senior Creditor, including obligations of the Commitment, Bank existing pursuant to the Loan Agreement to advance funds have been terminated. ; provided, however, that notwithstanding anything in this Agreement to the contrary, Holders may at all times (bA) Subordinated Creditor agrees receive, retain and covenants that none take action to obtain (i) shares of Series A Common Stock upon conversion of the Subordinated Creditor Documents shall be modified or amended without Senior Creditor's prior written consent. (c) Notwithstanding anything to the contrary set forth in SECTION I(A) aboveDebentures, so long as no Default has occurred and is continuing or would exist after giving effect to any such payment, Borrower may make payments to Subordinated Creditor of accrued interest on the Subordinated Obligation. AdditionallyDebentures or otherwise in accordance with the terms of the Debentures, so long as (i) no Default has occurred and is continuing, or would exist after giving effect to any such payment, and (ii) Borrower would be Cap Debentures (as defined in compliance the Debentures) issued pursuant to the Debentures, and Debentures in exchange for the Cap Debentures, in accordance with the Pro Forma Fixed Charge Coverage Ratio set forth in SECTION 9.4 terms of the Loan Agreement on a pro forma basis after giving effect Cap Debentures and (iii) PIK Debentures (as defined in the Debentures) issued pursuant to the Debentures, and Holder shall not be deemed to have transferred to the Bank any such payment rights or agreed to take any actions with respect to the foregoing; and (and Borrower delivers B) Holders may seek specific enforcement of WTI's nonmonetary obligations under the Subordinate Documents (subject however, to Senior Creditor written evidence satisfactory Section 4 with respect to Senior Creditor of such compliance before any such payment is madeCollateral), Borrower may make payments of principal on the Subordinated Obligations.

Standby; Subordination. (a) The payment and performance of the Subordinated Debt is hereby subordinated to the payment and performance in full of the Senior Debt, and, except as set forth in Section 3 below, the Junior Creditor will not, directly or indirectlynot ask, demand, (including without limitation by commencing or joining with any other creditors of Borrower in commencing any bankruptcy, reorganization, receivership or insolvency proceeding against Borrower)xxx for, take or receive from the Borrower or any other Person liable for all or any part of Borrower's Affiliatesthe Senior Debt, by set-off 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 by Borrower, or any successor or assign of Borrower, including, without limitation, a receiver, trustee or debtor in possession (the term "BORROWER" hereinafter shall include any such successor or assign of Borrower), to Subordinated Creditor under any respect of the Subordinated Creditor Documents Debt (whether such amounts represent principal, principal or interest, fees, expenses, or any other obligations, whether obligations which are due or not due, direct or indirect, absolute or contingent), including, without limitation, taking any security for any of the foregoing, or the taking of any negotiable instruments evidencing such amounts) (all such indebtedness obligations and liabilities being hereinafter included as the "SUBORDINATED OBLIGATIONS"),nor any security or guaranties for any of the foregoing instrument therefor, unless and until all of the Obligations, and all other obligations, liabilities, and indebtedness of Borrower to Senior Creditor, whether now existing or hereafter arising between Borrower and Senior Creditor, directly, or acquired outright, conditionally or as collateral security from another by Senior Creditor, which are related to or arising out of loans, advances, or extensions of credit to Borrower or any of its Affiliates Debt shall have been fully paid and satisfied with interest (all such obligations, indebtedness and liabilities of Borrower to Senior Creditor are hereinafter referred to as the "SENIOR INDEBTEDNESS") and all financing arrangements between the Borrower and Senior Creditor, including the Commitment, Creditor have been terminated. . The Junior Creditor warrants and represents that the Subordinated Debt is unsecured and agrees that (a) the Junior Creditor hereafter will not accept any security therefor from the Borrower, or from any third Person for the benefit of the Borrower; and (b) Subordinated in the event the Junior Creditor agrees and covenants that none of does obtain any security for the Subordinated Creditor Documents shall be modified or amended without Senior Creditor's prior written consent. (c) Notwithstanding anything to the contrary set forth in SECTION I(A) aboveDebt, so long as no Default has occurred and is continuing or would exist after giving effect to any such payment, Borrower may make payments to Subordinated Creditor of accrued interest on the Subordinated Obligation. Additionally, so long as (i) all liens and security interests of the Junior Creditor in any assets of the Borrower or any assets securing the Senior Debt shall be and hereby are subordinated to the rights and interests of the Senior Creditor, if any, in those assets, (ii) the Junior Creditor shall have no Default has occurred and is continuing, or would exist after giving effect right to possession of any such paymentassets or to foreclose upon any such assets, whether by judicial action or otherwise, unless and until all the Senior Debt shall have been fully paid and satisfied and all financing arrangements between the Borrower and Senior Creditor have been terminated, and (iiiii) Borrower would be in compliance with at the Pro Forma Fixed Charge Coverage Ratio set forth in SECTION 9.4 request of the Loan Agreement on a pro forma basis after giving effect Senior Creditor, the Junior Creditor shall execute and deliver to any such payment (and Borrower delivers to the Senior Creditor written evidence satisfactory to such termination statements and releases as the Senior Creditor shall reasonably request to release the Junior Creditor's security interest in or lien against such property. The Junior Creditor, prior to the payment in full and discharge of such compliance before the Senior Debt and the termination of all financing arrangements between the Borrower and the Senior Creditor, shall have no right to enforce any such payment is made), Borrower may make payments of principal on claim with respect to the Subordinated ObligationsDebt, or to take any action against the Borrower or the property of the Borrower or of any other Person liable for all or any part of the Senior Debt for the benefit of the Borrower. The Junior Creditor acknowledges and agrees that, to the extent the terms and provisions of this Agreement are inconsistent with any agreement or understanding between the Junior Creditor and the Borrower, such agreement or understanding shall be subject to this Agreement.

Standby; Subordination. (a) The payment and performance of the Subordinated Creditor Debt is hereby subordinated to the payment and performance in full of the Senior Debt, and, except as set forth in Section 3 below, neither Xxxxxx, Draft nor PKM will not, directly or indirectlyask, demand, (including without limitation by commencing or joining with any other creditors of Borrower in commencing any bankruptcy, reorganization, receivership or insolvency proceeding against Borrower)xxx for, take or receive from the Borrower or any other Person liable for all or any part of Borrower's Affiliatesthe Senior Debt, by set-off 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 by Borrower, or any successor or assign of Borrower, including, without limitation, a receiver, trustee or debtor in possession (the term "BORROWER" hereinafter shall include any such successor or assign of Borrower), to Subordinated Creditor under any respect of the Subordinated Creditor Documents Debt (whether such amounts represent principal, principal or interest, fees, expenses, or any other obligations, whether obligations which are due or not due, direct or indirect, absolute or contingent), including, without limitation, taking any additional security for any of the foregoing, or the taking of any negotiable instruments evidencing such amounts) (all such indebtedness obligations and liabilities being hereinafter included as the "SUBORDINATED OBLIGATIONS"),nor any security or guaranties for any of the foregoing instrument therefor, unless and until all of the Obligations, Senior Debt shall have been indefeasibly paid and satisfied in full and all other obligations, liabilities, and indebtedness of Borrower financing arrangements with respect to Senior Creditor, whether now existing or hereafter arising Debt between the Borrower and Senior CreditorPKM have been terminated. Xxxxxx warrants and represents that his Subordinated Debt is secured solely pursuant to the May Security Agreement. Draft warrants and represents that its Subordinated Debt is secured solely pursuant to the Draft Security Agreement. Each of Xxxxxx and Draft agrees that hereafter they will not accept any additional security for Subordinated Debt owed to them from the Borrower or from any third Person for the benefit of the Borrower. Each of Xxxxxx, directlyDraft and PKM agrees that (i) all Security Interests of Xxxxxx, or acquired outrightDraft and PKM (in PKM’s case, conditionally or as collateral security from another by Senior Creditor, which are related to or arising out the extent such Security Interest secures only Subordinated Debt) in any assets of loans, advances, or extensions of credit to the Borrower or any assets securing the Senior Debt shall and hereby are subordinated to the rights and interests of its Affiliates PKM, if any, in those assets to secure Senior Debt, (ii) neither Xxxxxx or Draft shall have any right to possession of any such assets or to foreclose upon any such assets, whether by judicial action or otherwise, unless and until all the Senior Debt shall have been fully indefeasibly paid and satisfied with interest (all such obligations, indebtedness and liabilities of Borrower to Senior Creditor are hereinafter referred to as the "SENIOR INDEBTEDNESS") in full and all financing arrangements between the Borrower and PKM with respect to Senior Creditor, including the Commitment, Debt have been terminated. (b) Subordinated Creditor agrees and covenants that none of the Subordinated Creditor Documents shall be modified or amended without Senior Creditor's prior written consent. (c) Notwithstanding anything to the contrary set forth in SECTION I(A) above, so long as no Default has occurred and is continuing or would exist after giving effect to any such payment, Borrower may make payments to Subordinated Creditor of accrued interest on the Subordinated Obligation. Additionally, so long as (i) no Default has occurred and is continuing, or would exist after giving effect to any such payment, and (iiiii) Borrower would be at the request of PKM, each of Xxxxxx and Draft shall authorize, execute or deliver to PKM such termination statements and releases as PKM shall reasonably request to release Xxxxxx’x and Draft’s Security Interest in compliance with or against such property. Neither Xxxxxx, Draft or PKM, prior to the Pro Forma Fixed Charge Coverage Ratio set forth indefeasible payment in SECTION 9.4 full and discharge of the Loan Agreement on a pro forma basis after giving effect to any such payment (Senior Debt and the termination of all financing arrangements between the Borrower delivers and PKM with respect to Senior Creditor written evidence satisfactory Debt, shall have any right to Senior Creditor of such compliance before enforce any such payment is made), Borrower may make payments of principal on claim with respect to the Subordinated ObligationsDebt, or to take any action against the Borrower or the property of the Borrower or of any other Person liable for all or any part of the Senior Debt for the benefit of the Borrower to collect any Subordinated Debt. Each of Xxxxxx and Draft acknowledges and agrees that, to the extent the terms and provisions of this Agreement are inconsistent with any agreement or understanding between either Xxxxxx and the Borrower or Draft and the Borrower, such agreement or understanding shall be subject to this Agreement.