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This excerpt taken from the WEN 8-K filed Dec 27, 2007. pari passu with such DIP
Financing, will subordinate (and will be deemed hereunder to have subordinated) the Liens in favor of Series A Holders (x) to such DIP Financing with the same terms and conditions as the Liens in favor of Series B Holders are subordinated thereto
(and such subordination will not alter in any manner the terms of this Agreement), (y) to any adequate protection provided to Series B Holders and (z) to any “carve-out” for administrative, professional and United States Trustee fees
agreed to by Series B Administrative Holder or Series B Holders; provided, however, that (A) subject to
any such “carve” out under the foregoing clause (z), the Series A Holders retain a Lien on the Collateral (including proceeds thereof-arising after the commencement of such proceeding) with the same priority as existed prior to the
commencement of the case under the Bankruptcy Code (junior in priority to the Liens securing such DIP Financing as described above), (B) the Series A Holders receive (without objection from the Series B Holders) a replacement Lien on post-petition
assets in which the Series B Holders have a replacement Lien securing the Series B Claims, with the same priority as existed prior to the commencement of the case under the Bankruptcy Code (junior in priority to the Liens securing such DIP
Financing, provided that the inability of the Series A Holders to receive a Lien on actions under Chapter 5 of the Bankruptcy Code and proceeds thereof shall not affect the agreements and waivers set forth in this clause (d)), and (C) the aggregate
principal amount of the DIP Financing together with the principal amount of the Series B Claims does not exceed the Maximum First Lien Principal Amount. Nothing in this paragraph will restrict the Series A Holders from raising any objection to the
terms of the DIP Financing that could be raised by an unsecured creditor.
(e) Series A Holders agree that until the Series B Claims are Paid in Full, they will not seek relief from the automatic stay or from any other stay in any Insolvency Proceeding or take any action in derogation thereof, in each case in respect of any Collateral, without the prior written consent of Series B Administrative Holder (which consent shall not be unreasonably delayed, conditioned or withheld). (f) Series A Holders agree that until the Series B Claims are Paid in Full, they shall not object to, contest, or support any other Person objecting to or contesting, (i) any request by Series B Administrative Holder or any other Series B Holder for adequate protection, (ii) any objection by Series B Administrative Holder or any other Series B Holder to any motion, relief, action or proceeding based on a claim of a lack of adequate protection or (iii) the payment of interest, fees, expenses or other amounts to Series B Administrative Holder or any other Series B Holder under Section 506(b) or 506(c) of the Bankruptcy Code or otherwise. Notwithstanding anything contained in this Section 2, in any Insolvency Proceeding, (x) Series A Holders may seek, support, accept or retain adequate protection (A) 12 only if Series B Holders are granted adequate protection that includes replacement Liens on additional collateral and superpriority claims and (B) solely in the form of (1) a replacement Lien on such additional collateral, subordinated to the Liens in favor of Series B Holders and such DIP Financing on the same basis as the other Liens in favor of Series A Holders are so subordinated to the Series B Claims under this Agreement subject to the “carve-out” in Section 2.5(d)(iii)(z) above and (2) solely to the extent that the Collateral pledged to secure the Series A Claims has been diminished in connection with such Insolvency Proceeding, superpriority claims junior in all respects to the superpriority claims granted to Series B Holders, and (y) in the event Series A Administrative Holder receives adequate protection, including in the form of additional collateral, then Series A Holders agree that Series B Administrative Holder shall have a senior Lien and claim on such adequate protection as security for the Series B Claims and that any Lien on any additional collateral securing the Series A Claims shall be subordinated to the Liens on such collateral securing the Series B Claims and any other Liens granted to Series B Holders as adequate protection, with such subordination to be on the same terms that the other Liens securing the Series A Claims are subordinated to such Series B Claims under this Agreement. (g) Neither Series A Administrative Holder nor any other Series A Holder shall, in an Insolvency Proceeding or otherwise, oppose any sale or disposition of any assets of any Note Party that is supported by Series B Holders, and Series A Administrative Holder and each other Series A Holder will be deemed to have consented under Section 363 of the Bankruptcy Code (and otherwise) to any sale supported by Series B Holders and to have released its Liens in such assets upon the consummation of such sale so long as the net proceeds thereof are used to pay down the Series B Claims. (h) Series A Administrative Holder and each other Series A Holder acknowledges and agrees that (i) the grants of Liens pursuant to the Series B Note Documents and the Series A Note Documents constitute two separate and distinct grants of Liens and (ii) because of, among other things, their differing rights in the Collateral, the Series A Claims are fundamentally different from the Series B Claims and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of Series B Holders and Series A Holders in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then Series A Holders hereby acknowledge and agree that all distributions shall be made as if there were separate classes of senior and junior secured claims against Note Parties in respect of the Collateral with the effect being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring all claims held by Series A Holders), Series B Holders shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest before any distribution is made in respect of the claims held by Series A Administrative Holder or any other Series A Holder, with Series A Administrative Holder and each other Series A Holder hereby acknowledging and agreeing to turn over to Series B Holders amounts otherwise received or receivable by it to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of Series A Holders. (i) Nothing contained herein shall prohibit or in any way limit Series B Administrative Holder or any other Series B Holder from objecting in any Insolvency Proceeding or otherwise to any action taken by Series A Administrative Holder or any other Series A Holder, including the seeking by Series A Administrative Holder or any other Series A Holder of adequate protection or the asserting by Series A Administrative Holder or any other Series A Holder of any of its rights and remedies under the Series A Note Documents or otherwise. (j) To the extent that Series A Administrative Holder or any other Series A Holder has or acquires rights under Section 363 or Section 364 of the Bankruptcy Code with respect to 13 any of the Collateral, Series A Administrative Holder and each other Series A Holder agrees not to assert any of such rights without the prior written consent of Series B Administrative Holder; provided that if requested by Series B Administrative Holder, Series A Administrative Holder shall timely exercise such rights in the manner requested by Series B Administrative Holder, including any rights to payments in respect of such rights. (k) Each Series A Holder hereby waives any right to charge, or encourage or request any party to charge, the Collateral pursuant to Section 506(c) of the Bankruptcy Code. Each Series A Holder will not challenge or oppose, join with any party challenging or opposing or encourage any party to oppose or challenge or take any action whatsoever to impair the exercise by the Series B Holders of the rights and remedies granted to the Series B Holders in the Series B Note Documents. (l) Notwithstanding anything to the contrary in the foregoing, in an Insolvency Proceeding, Series A Holders may raise any objection or take any other action that could otherwise be raised or taken by an unsecured creditor.
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