Common use of Certain Conversions and Repurchases Deemed Payment Clause in Contracts

Certain Conversions and Repurchases Deemed Payment. For the purposes of this Article only, (1) the issuance and delivery of junior securities upon conversion of Securities in accordance with ARTICLE ELEVEN or upon the repurchase of Securities in accordance with ARTICLE THIRTEEN shall not be deemed to constitute a payment or distribution on account of the principal of or premium or interest or Liquidated Damages on Securities or on account of the purchase or other acquisition of Securities, and (2) the payment, issuance or delivery of cash, property or securities (other than junior securities) upon conversion of a Security shall be deemed to constitute payment on account of the principal of such Security. For the purposes of this SECTION 12.11, the term "junior securities" means (a) shares of any stock of any class of the Company and any cash, property or securities into which the Securities are convertible pursuant to ARTICLE ELEVEN and (b) securities of the Company which are subordinated in right of payment to all Senior Debt which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article. Nothing contained in this ARTICLE TWELVE or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors other than holders of Senior Debt and the Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with ARTICLE ELEVEN or to exchange such Security for Common Stock in accordance with ARTICLE THIRTEEN if the Company elects to satisfy the obligations under ARTICLE THIRTEEN by the delivery of Common Stock.

Certain Conversions and Repurchases Deemed Payment. For the -------------------------------------------------- purposes of this Article only, (1i) the issuance and delivery of junior securities upon conversion of Securities in accordance with ARTICLE ELEVEN Article XII or upon the repurchase of Securities in accordance with ARTICLE THIRTEEN Article XIV shall not be deemed to constitute a payment or distribution on account of the principal of or premium or interest or (including Liquidated Damages Damages, if any) on Securities or on account of the purchase or other acquisition of Securities, and (2ii) the payment, issuance or delivery of cashcash (except in satisfaction of fractional shares pursuant to Section 12.3), property or securities (other than junior securities) upon conversion conversion of a Security shall be deemed to constitute payment on account of the principal of such Security. For the purposes of this SECTION 12.11Section, the term "junior securities" means (a) shares of any stock of any class of the Company and any cash, property or securities into which the Securities are convertible pursuant to ARTICLE ELEVEN Article XII and (b) securities of the Company which are subordinated in right of payment to all Senior Debt Indebtedness which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article. Nothing contained in this ARTICLE TWELVE Article or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors other than holders of Senior Debt Indebtedness and the Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with ARTICLE ELEVEN Article XII or to exchange such Security for Common Stock in accordance with ARTICLE THIRTEEN Article XIV if the Company elects to satisfy the obligations under ARTICLE THIRTEEN Article XIV by the delivery of Common Stock.

Certain Conversions and Repurchases Deemed Payment. For the purposes of this Article Eleven only, (1a) the issuance and delivery of junior securities upon conversion of Securities in accordance with ARTICLE ELEVEN Article Ten or upon the repurchase of Securities in accordance with ARTICLE THIRTEEN Article Twelve shall not be deemed to constitute a payment or distribution on account of the principal of or premium or interest or Liquidated Damages on Securities or on account of the purchase or other acquisition of Securities, and (2b) the payment, issuance or delivery of cash, property or securities (other than junior securities) upon conversion conversion of a Security shall be deemed to constitute payment on account of the principal of such Security. For the purposes of this SECTION 12.11Section 11.11, the term "junior securities" means (a1) shares of any stock of any class of the Company and any cash, property or securities into which the Securities are convertible pursuant to ARTICLE ELEVEN Article Ten and (b2) securities of the Company which that are subordinated in right of payment to all Senior Debt which that may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this ArticleArticle Eleven. Nothing contained in this ARTICLE TWELVE Article Eleven or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors other than holders of Senior Debt and the Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with ARTICLE ELEVEN Article Ten or to exchange such Security for Common Stock in accordance with ARTICLE THIRTEEN Article Twelve if the Company elects to satisfy the obligations under ARTICLE THIRTEEN Article Twelve by the delivery of Common Stock.

Certain Conversions and Repurchases Deemed Payment. For the purposes of this Article only, (1) the issuance and delivery of junior securities upon conversion of Securities in accordance with ARTICLE ELEVEN or upon Article Eleven of the repurchase of Securities in accordance with ARTICLE THIRTEEN Indenture shall not be deemed to constitute a payment or distribution on account of the principal Parent's obligations under Section 3.1 of or premium or interest or Liquidated Damages on Securities or on account of the purchase or other acquisition of Securitiesthis First Supplemental Indenture, and (2) the payment, issuance or delivery of cash, property or securities (other than junior securities) upon conversion conversion of a Security shall be deemed to constitute payment on account of the principal of such SecurityParent's obligations under Section 3.1 of this First Supplemental Indenture. For the purposes of this SECTION 12.11Section, the term "junior securities" means (a) shares of any stock of any class of the Company Parent and any cash, property or securities into which the Securities are convertible pursuant to ARTICLE ELEVEN Article II of this First Supplemental Indenture and Article Eleven of the Indenture and (b) securities of the Company which are subordinated in right of payment to all Parent Senior Debt which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities Parent's obligations pursuant to Section 3.1 of this First Supplemental Indenture are so subordinated as provided in this Article. Nothing contained in this ARTICLE TWELVE Article or elsewhere in this First Supplemental Indenture, in the Indenture or in the Securities is intended to or shall impair, as among the CompanyParent, its creditors other than holders of Parent Senior Debt and the Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with Article II of this First Supplemental Indenture and Article Eleven of the Indenture. ARTICLE ELEVEN or to exchange such Security for Common Stock in accordance with ARTICLE THIRTEEN if the Company elects to satisfy the obligations under ARTICLE THIRTEEN by the delivery of Common Stock.FIVE

Certain Conversions and Repurchases Deemed Payment. For the purposes of this Article XIII only, (1i) the issuance and delivery of junior securities upon conversion of Securities in accordance with ARTICLE ELEVEN Article XII or upon the repurchase of Securities in accordance with ARTICLE THIRTEEN Article XIV shall not be deemed to constitute a payment or distribution on account of the principal of or premium or interest or Liquidated Damages (including Special Interest, if any) on Securities or on 102 account of the purchase or other acquisition of Securities, and (2ii) the payment, issuance or delivery of cashcash (except in satisfaction of fractional shares pursuant to Section 12.3 or 14.3(7)), property or securities (other than junior securities) upon conversion conversion of a Security shall be deemed to constitute payment on account of the principal of such Security. For the purposes of this SECTION 12.11Section, the term "junior securities" means (a) shares of any stock of any class of the Company and any cash, property or securities into which the Securities are convertible pursuant to ARTICLE ELEVEN Article XII and (b) securities of the Company which are subordinated in right of payment to all Senior Debt which that may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this ArticleArticle XIII. Nothing contained in this ARTICLE TWELVE Article or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors other than holders of Senior Debt and the Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with ARTICLE ELEVEN Article XII or to exchange such Security for Common Applicable Stock in accordance with ARTICLE THIRTEEN Article XIV if the Company elects to satisfy the obligations under ARTICLE THIRTEEN Article XIV by the delivery of Common Applicable Stock.

Certain Conversions and Repurchases Deemed Payment. For the -------------------------------------------------- purposes of this Article only, (1i) the issuance and delivery of junior securities upon conversion of Securities in accordance with ARTICLE ELEVEN Article VIII or upon the repurchase of Securities in accordance with ARTICLE THIRTEEN Article X shall not be deemed to constitute a payment or distribution on account of the principal of or premium or interest or Liquidated Damages on Securities or on account of the purchase or other acquisition of Securities, and (2ii) the payment, issuance or delivery of cashcash (except in satisfaction of fractional shares pursuant to Section 8.3), property or securities (other than junior securities) upon conversion conversion of a Security shall be deemed to constitute payment on account of the principal of such Security. For the purposes of this SECTION 12.11Section, the term "junior securities" means (a) shares of any stock of any class of the Company and any cash, property or securities into which the Securities are convertible pursuant to ARTICLE ELEVEN Article VIII and (b) securities of -44- the Company which are subordinated in right of payment to all Senior Debt Indebtedness which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article. Nothing contained in this ARTICLE TWELVE Article or elsewhere in this Supplemental Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors other than holders of Senior Debt Indebtedness and the Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with ARTICLE ELEVEN Article VIII or to exchange such Security for Common Stock in accordance with ARTICLE THIRTEEN Article X if the Company elects to satisfy the obligations under ARTICLE THIRTEEN Article X by the delivery of Common Stock.

Certain Conversions and Repurchases Deemed Payment. For the purposes of this Article only, (1i) the issuance and delivery of junior securities upon conversion of Securities Notes in accordance with ARTICLE ELEVEN Article 10 or upon the repurchase of Securities Notes in accordance with ARTICLE THIRTEEN Article 11 shall not be deemed to constitute a payment or distribution on account of the principal of or premium or interest or Liquidated Damages on Securities Notes or on account of the purchase or other acquisition of SecuritiesNotes, and (2ii) the payment, issuance or delivery of cashcash (except in satisfaction of fractional shares pursuant to Section 3.06(c), 10.03 or 11.03(7)), property or securities (other than junior securities) upon conversion conversion of a Security Note shall be deemed to constitute payment on account of the principal of such SecurityNote. For the purposes of this SECTION 12.11Section, the term "junior securities" means (a) shares of any stock of any class of the Company and any cash, property or other securities into which the Securities Notes are convertible pursuant to ARTICLE ELEVEN Article 10 and (b) securities of the Company which are subordinated in right of payment to all Senior Debt which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities Notes are so subordinated as provided in this Article. Nothing contained in this ARTICLE TWELVE Article or elsewhere in this Indenture or in the Securities Notes is intended to or shall impair, as among the Company, its creditors other than holders of Senior Debt and the Holders of the SecuritiesNotes, the right, which is absolute and unconditional, of the any Holder of any Security to convert such Security any Note in accordance with ARTICLE ELEVEN Article 10 or to exchange such Security Note for Common Stock in accordance with ARTICLE THIRTEEN Article 11 if the Company elects to satisfy the obligations under ARTICLE THIRTEEN Article 11 by the delivery of Common Stock.. [Signatures on following page]