SUBORDINATION AND INTERCREDITOR AGREEMENT

WHEREAS , the Senior Creditor and the Junior Creditor wish to confirm their agreements and understandings with respect to the relative priorities of their respective claims and liens against the Company and its assets, as more particularly set forth herein;

NOW, THEREFORE , in consideration of the premises and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

1.              Definitions .  In addition to those terms defined elsewhere in this Agreement, the following terms shall have the following meanings wherever used in this Agreement:

“Asset Purchase Agreement” means the Asset Purchase Agreement of even date herewith between the Company and the Junior Creditor, as in effect on the date hereof.

“Code” means the United States Bankruptcy Code as in effect from time to time.

“Junior Debt” means all obligations existing, arising under or pursuant to the Junior Loan Documents, as same may be amended, extended or otherwise modified from time to time; provided , however , that for avoidance of doubt, the Junior Debt shall not include any monetary obligations of the Company pursuant to Section 7.3 of the Asset Purchase Agreement so long as such obligations are not secured by any collateral.

“Junior Liens” means all liens, security interests, pledges and other encumbrances of any kind, in, to or in respect of any assets or properties of the Company, held from time to time by the holder or holders of Junior Debt as collateral security for the payment and/or performance of Junior Debt, including but not limited to those liens, security interests and other encumbrances created and/or evidenced by the Junior Security Documents.

“Junior Loan Documents” means the Junior Loan Agreement, the Junior Note, the Junior Security Documents, and any and all other agreements or instruments executed and delivered pursuant thereto or in respect thereof.

“Permitted Payments” means scheduled payments of principal, accrued interest and any attorneys’ fees under the Junior Note as and when same become due and payable on the scheduled payment dates set forth in the Junior Note.

“Senior Debt” means all loans, indebtedness, liabilities and other obligations of any kind owing by the Company under any or all of the Senior Loan Documents (as same may be amended, extended or otherwise modified from time to time), whether for principal, interest (including, without limitation, any and all interest accruing upon and after the commencement of any proceedings under the Code, whether or not such interest is allowed in any such proceeding), fees (including, without limitation, forbearance fees), costs, expenses or otherwise, however evidenced, and however created, whether now existing or hereafter arising, whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated

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or unliquidated, secured or unsecured, original, renewed or extended; provided , however , that the Senior Debt shall not include any prepayment premiums.

“Senior Liens” means all liens, security interests, pledges and other encumbrances of any kind, in, to or in respect of any assets or properties of the Company, held from time to time by the holder or holders of Senior Debt as collateral security for the payment and/or performance of Senior Debt, including but not limited to those liens, security interests and other encumbrances created and/or evidenced by the Senior Security Documents.

“Senior Loan Documents” means the Senior Loan Agreement, the Senior Notes, the Senior Security Documents, and any and all other agreements and instruments executed and delivered pursuant thereto or in respect thereof.

“Standstill Period” shall mean the 180-day period commencing on the date on which the Junior Creditor gives notice to the Senior Creditor that there has occurred and is continuing an Event of Default (as such term is defined in the Junior Loan Agreement) within any of clauses (a), (d), (e), (g), (h), (j) or (k) of the definition thereof contained in the Junior Loan Agreement or by reason of any material non-compliance by the Company with its obligations under Section 5.1 of the Asset Purchase Agreement; provided , however , that if, during such 180-day period, the Senior Creditor shall take action to sue upon or otherwise enforce the Senior Debt, or foreclose or exercise other substantive remedies with respect to the Senior Liens, then the Standstill Period shall be deemed to be tolled on the date on which the initial such action by the Senior Creditor occurred and such Standstill Period shall continue immediately upon the Senior Creditor’s failure to pursue or otherwise continue such action(s).

2.              Subordination of Junior Debt; Standstill .

(a)            Subject to Sections 2(b) and 2(c) below, the Junior Creditor will not ask, demand, accelerate, sue for, enforce, take, collect or receive, by set-off or in any other manner, any payments on or in respect of the Junior Debt (whether of principal, interest, collection costs or otherwise) from the Company, or any successor or assign of the Company, including, without limitation, a receiver, trustee or debtor-in-possession (the term “Company” hereinafter shall include any such successor and assign of the Company), or from any other person, firm, partnership, corporation or other entity for the benefit of the Company, unless and until the earlier of (i) all of the Senior Debt (exclusive of contingent indemnification obligations to the extent that no claim giving rise thereto has been asserted) shall have been fully paid and satisfied with interest (including, without limitation, any and all interest accruing upon and after the commencement of any proceedings under the Code, whether or not such interest is allowed in any such proceeding), and the Senior Loan Agreement and all other Senior Loan Documents have been terminated, or (ii) the expiration or termination of the Standstill Period.  Upon the expiration or termination of the Standstill Period, the Junior Creditor may, to the extent provided in the Junior Loan Documents, accelerate, enforce and sue for collection of the Junior Debt, provided that any collection(s) made by the Junior Creditor shall be subject to Section 5 below.

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(b)            Notwithstanding the provisions of Section 2(a) above, the Company may pay to the Junior Creditor, and the Junior Creditor may accept from the Company, the Permitted Payments as and when due and payable in accordance with the Junior Note, provided that no Event of Default (as such term is defined in the Senior Loan Agreement on the date hereof), which has not been waived by the Senior Creditor (provided that forbearance shall not be deemed a waiver), then exists or would exist after giving effect to such payment.  The Junior Creditor hereby acknowledges that an Event of Default under the Senior Loan Agreement has occurred and is continuing, and will likely continue indefinitely until and after Permitted Payments become due and payable under the Junior Note.  Furthermore, nothing herein contained shall be deemed to prohibit or impair the ability of the Company to pay, and the Junior Creditor to collect and receive, payment of the Junior Debt by means of offset, at the time of the closing of the transactions under the Asset Purchase Agreement, against the purchase price payable by the Junior Creditor under the Asset Purchase Agreement .

(c)            To the extent that the Permitted Payment is not made when due, the Senior Creditor shall have the right (but not the obligation) to cure any failure by the Company to make such Permitted Payment by making such payment on behalf of the Company to the Junior Creditor. Any such payment made by the Senior Creditor shall be charged to the Company and treated as the purchase of an Additional Note (regardless of whether the Senior Loan Agreement contemplates or otherwise permits the purchase of an Additional Note in such principal amount) on substantially the same terms and conditions as the Senior Notes.

3.              Priorities in Collateral and Remedies .

(a)            Notwithstanding anything to the contrary contained in the Junior Loan Documents or in any other agreement between the Company and the Junior Creditor, and notwithstanding the time, order or method of attachment or perfection as between the Senior Liens and the Junior Liens, or the time or order of filing or recording of financing statements or other evidences of liens or security interests, the Junior Creditor acknowledges and agrees that all Senior Liens shall have absolute and unconditional priority over any and all Junior Liens, to the full extent of all Senior Debt.

(b)            Anything contained in Section 2 above to the contrary notwithstanding,  unless and until the earlier of (i) the date on which all Senior Debt (exclusive of contingent indemnification obligations to the extent that no claim giving rise thereto has been asserted) has been indefeasibly paid and satisfied in full in cash, or (ii) the expiration or termination of the Standstill Period (provided that the Senior Creditor is not then making good faith efforts to exercise its enforcement remedies with respect to the Senior Liens), the Junior Creditor shall not, without the prior written consent of the Senior Creditor, seek to foreclose or exercise any other enforcement remedies with respect to any Junior Liens, or assert any claims or interests therein, or institute any legal proceedings with respect to the subject collateral, or take any other action, directly or indirectly, that would interfere in any manner with the rights of the holder of the Senior Liens, including but not limited to the exclusive right to foreclose upon and effect the sale or disposition of any collateral.  Upon the earlier to occur of the events described in clauses (i)

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and (ii) of this Section 3(b), and provided that the Senior Creditor is not then making good faith efforts to exercise its enforcement remedies with respect to the Senior Liens, the Junior Creditor may effect foreclosure and exercise of its enforcement remedies with respect to the Junior Liens, provided that (A) any and all net proceeds realized therefrom shall be subject to Section 5 below, and (B) in the event that the Senior Creditor shall thereafter make good faith efforts to exercise its enforcement remedies with respect to the Senior Liens, the Junior Creditor shall suspend the exercise of its enforcement remedies so as not to interfere with the actions of the Senior Creditor.

(c)            If, as and when so requested by the Senior Creditor, the Junior Creditor shall (i) immediately release or otherwise terminate the Junior Liens in connection with and/or to facilitate the sale, realization upon or other disposition of collateral by the Senior Creditor, or by the Company with the prior written consent of the Senior Creditor, in each case with respect to that collateral which is being sold, realized upon or otherwise disposed of, (A) in the ordinary course of the Company’s business, (B) prior to the declaration of an Event of Default by the Senior Creditor under the Senior Loan Agreement if the Senior Creditor in good faith believes that such sale, realization or