Common use of Notes Subordinated to Senior Indebtedness Clause in Contracts

Notes Subordinated to Senior Indebtedness. The Company, for itself and its successors, and each Holder, by his or her acceptance of Notes, agrees that the payment of the Principal of and interest on the Notes is subordinated, to the extent and in the manner provided in this Article Ten, to the right of payment in full to all present and future Senior Indebtedness, and that these subordination provisions are for the benefit of the holders of Senior Indebtedness. The provisions of this Article Ten are for the benefit of the holders of the Senior Indebtedness from time to time (and their successors and assigns) and shall be enforceable directly by them and their respective Representatives directly against the Company, each Guarantor, the Trustee and the Holders (and their successors and assigns). The provisions of this Article Ten shall be a continuing agreement and shall be irrevocable and shall remain in full force and effect until payment in the full of the Senior Indebtedness in cash or cash equivalents, and shall constitute a continuing and irrevocable offer to all Persons who become holders of, or continue to hold, Senior Indebtedness (whether such Senior Indebtedness was created or acquired before or after the issuance of the Notes), each of which holders shall be deemed for the purposes hereof to have acquired Senior Indebtedness in reliance upon the provisions of this Article Ten. The provision of this Article Ten shall survive the commencement of any reorganization or other proceedings with respect to the Company, any Guarantor or any other Person and the discharge of any claim in connection with such Reorganization or other proceedings, including, without limitation, the discharge of any Senior Indebtedness or the Guarantee. The holders of the Senior Indebtedness and their respective Representatives are hereby authorized to demand specific performance of the provisions of this Article Ten at any time when the Company, any Guarantor or any Holder shall have failed to comply with any provision of this Article Ten applicable to it, and the Company, each Guarantor, and each Holder hereby irrevocably waives any defense based on the adequacy of a remedy at law that might be asserted as a bar to the remedy of specific performance hereof in any action brought therefor by the holders of the Senior Indebtedness and their respective Representatives.

Notes Subordinated to Senior Indebtedness. The Company, for itself Subject to Section 4(d) below and its successors, and each Holder, by his or her acceptance of Notes, agrees that the payment of the Principal of and interest on the Notes is subordinated, to the extent and in the manner provided in this Article Ten, to the right of payment in full to all present and future Senior Indebtedness, and that these subordination provisions are solely for the benefit of the holders of Senior Indebtedness. The , the Noteholder by its acceptance hereof covenants and agrees that all payments of the principal of (and premium, if any), and interest on, this Note shall be subordinated in accordance with the provisions of this Article Ten are Section 4 to the prior payment in full of all Senior Indebtedness. For purposes of this Section 4, the term "Senior Indebtedness" shall mean the payment obligations of the Company under the Loan Agreement as Amended, with respect to the repayment of principal, the payment of interest, reasonable and customary fees, and the reimbursement of reasonable expenses incurred; provided, however, that no such amendment, modification, extension, supplement or refinancing of the Loan Agreement shall directly or indirectly (i) increase the amount or extend or accelerate the date of any scheduled or mandatory payment of principal or interest thereunder, except that (A) the Company may borrow and reborrow from time to time under the Revolver and the Term B Loan and the Revolver may be renewed from time to time providing for a new maturity date, provided that in connection with any such renewal the benefit Loan Agreement shall be amended in a manner so as not to be on terms more restrictive in any manner than the terms being renewed; provided further that such new maturity date shall not, in the case of the Term B Loan, be after the original maturity date of the Term B Loan, (B) any scheduled or mandatory principal payment under the Term A Loan or the Term C Loan may be extended so long as the weighted average life to maturity of the Term A Loan and the Term C Loan, measured from the date of Closing and taking into account all repayments of principal previously made in respect thereof as of the time of such determination, if any, is not increased by more than six months from that in effect at the Closing, and (C) such amendment may increase the principal amount of Senior Indebtedness so long as the aggregate of all such increases pursuant to this clause (C) from and after the date of the Closing shall not exceed $2,000,000 in the aggregate, (ii) increase the rate or rates at which interest accrues or the methods of calculation thereof (including without limitation by amending any provisions (including definitions) used in calculating such interest rates such that a higher rate or margin may apply), (iii) increase any fees, indemnities, expense reimbursements or other charges payable to the lenders thereunder, or (iv) amend, modify, add or otherwise impose any representation, covenant or default or any other term or provision in a manner which is more onerous or more restrictive on the holders of the Senior Indebtedness from time to time (and their successors and assigns) and shall be enforceable directly by them and their respective Representatives directly against Notes or the Company, each Guarantor, Company or change any of the Trustee and the Holders (and their successors and assigns). The provisions of this Article Ten shall be a continuing agreement and shall be irrevocable and shall remain in full force and effect until payment restrictions in the full Loan Agreement or other agreements delivered in connection therewith or relating to performance by the Company of the Senior Indebtedness in cash Note Obligations (including restrictions which prohibit or cash equivalents, and shall constitute a continuing and irrevocable offer to all Persons who become holders of, limit the payment or continue to hold, Senior Indebtedness (whether such Senior Indebtedness was created or acquired before or after the issuance of the Notes), each of which holders shall be deemed for the purposes hereof to have acquired Senior Indebtedness in reliance upon the provisions of this Article Ten. The provision of this Article Ten shall survive the commencement prepayment of any reorganization or other proceedings amount with respect to the Company, any Guarantor or any other Person and the discharge of any claim in connection with such Reorganization or other proceedings, including, without limitation, the discharge of any Senior Indebtedness Notes or the GuaranteeNote Obligations). The holders of foregoing notwithstanding, in no event will the Senior Indebtedness and their respective Representatives are hereby authorized to demand specific performance of the provisions of this Article Ten Notes be subordinated at any time when to an amount of Senior Indebtedness exceeding an aggregate amount equal to $23,500,000, plus the Companyaggregate (not to exceed $2,000,000) of the principal amounts, any Guarantor if any, by which the aggregate principal amount of Senior Indebtedness is increased pursuant to an amendment or any Holder shall have failed to comply with any provision amendments thereto permitted by clause (i)(C) of this Article Ten applicable Section 4(a), minus the aggregate amount of permanent reductions in the outstanding principal of, or commitments to it, and extend credit under the Company, each Guarantor, and each Holder hereby irrevocably waives any defense based on the adequacy of a remedy at law that might be asserted Loan Agreement as a bar to the remedy of specific performance hereof in any action brought therefor by the holders of the Senior Indebtedness and their respective RepresentativesAmended.

Notes Subordinated to Senior Indebtedness. (a) The Company, for itself Company ----------------------------------------- covenants and its successorsagrees, and each HolderHolder by accepting a Note covenants and agrees, that (i) the Indebtedness evidenced by his or her acceptance of the Notes, agrees that including, but not limited to, the payment of the Principal of principal of, premium, if any, interest, Additional Amounts, if any, and interest Liquidation Damages, if any, on the Notes, and any other payment obligation of the Company in respect of the Notes (including any obligation to repurchase the Notes) is subordinatedsubordinated in right of payment, to the extent and in the manner provided in this Article TenArticle, to the right of prior payment in full to in cash or Cash Equivalents of all present Senior Indebtedness of the Company (whether outstanding on the date hereof or hereafter Incurred) (including, without limitation, the Company's obligations under the Senior Notes) and future Senior Indebtedness, and that these (ii) the subordination provisions are is for the benefit of the holders Holders of Senior Indebtedness. The Notes shall rank in all respects pari passu with all other Senior Subordinated Indebtedness of the Company. The Notes shall rank senior in all respects to all existing and future Indebtedness of the Company that is neither Senior Indebtedness nor Senior Subordinated Indebtedness and only Indebtedness of the Company that is Senior Indebtedness shall rank senior to the Notes in accordance with the provisions set forth herein. (b) Subject to Section 11.4, if (i) the Company shall default in the payment of any principal of, premium, if any, or interest, if any, on any Senior Indebtedness when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, or (ii) any other default shall occur with respect to Senior Indebtedness and the maturity of such Senior Indebtedness has been accelerated in accordance with its terms, then, upon written notice of such default to the Company and the Trustee by the holders of Senior Indebtedness or any trustee or representative therefor, unless and until, in either case, the default has been cured or waived, or has ceased to exist, or any such acceleration has been rescinded or such Senior Indebtedness has been paid in full, no direct or indirect payment (in cash, property, Notes, by set-off or otherwise) shall be made or agreed to be made on account of the principal of, premium, if any, interest, Additional Amounts, if any, or Liquidated Damages, if any, on any of the Notes, or in respect of any redemption, retirement, purchase or other acquisition of any of the Notes nor may any deposit in respect of the Notes be made pursuant to the provisions of Article VIII hereof; provided, however, (A) such payments and deposits may be made if the Company and the Trustee receive written notice approving such payment from the holders of such Senior Indebtedness or any trustee or representative therefor with respect to which either of the events set forth in clause (i) or (ii) of this sentence has occurred and is continuing and (B) the Company shall be required to make interest payments in kind of Secondary Notes unless cash payments are required to be made pursuant to the provisions of this Indenture and the Notes. (c) If any default (other than a default described in paragraph (b) of this Section 11.1) shall occur under Designated Senior Indebtedness, pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods occurs (a "Designated Senior ----------------- Indebtedness Non-Payment Default"), then, upon the receipt by the Trustee (with -------------------------------- a copy to the Company) of written notice thereof (a "Payment Notice") from or on -------------- behalf of holders of such Designated Senior Indebtedness or any trustee or representative therefor specifying an election to prohibit such payment and other action by the Company in accordance with the following provisions of this paragraph (c), the Company may not make any payment or take any other action that would be prohibited by paragraph (b) of this 11.1 during the period (the "Payment Blockage Period") commencing on the date of receipt of such Payment ----------------------- Notice and ending on the earlier of (i) the date, if any, on which the holders of such Designated Senior Indebtedness or any trustee or representative therefor notify the Trustee and the Company in writing that such Designated Senior Indebtedness Non-Payment Default is cured or waived or ceases to exist or the Senior Indebtedness to which such Designated Senior Indebtedness Non-Payment Default relates is discharged or (ii) the 179th day after the date of receipt of such Payment Notice. Notwithstanding the provisions described in the immediately preceding sentence, (i) payments and other distributions made from any defeasance trust created pursuant to Section 8.1 hereof may be used to make payments on the Notes if the applicable deposit does not violate Article Ten are VIII or this Article XI, (ii) no Designated Senior Indebtedness Non-Payment Default that existed or was continuing on the date of delivery to the Trustee of a Payment Notice shall be, or shall be made, the basis for a subsequent Payment Notice unless such default shall have been cured or waived for a period of no less than 90 days and (iii) the Company may resume payments on the Notes following such Payment Blockage Period unless the holders of such Designated Senior Indebtedness or the trustee or representative of such holders has accelerated the maturity of such Designated Senior Indebtedness. Any number of Payment Notices may be given; provided, however, that (i) irrespective of the number of defaults with respect to Designated Senior Indebtedness during such period, not more than one Payment Notice shall be given within a period of any 360 consecutive days and (ii) no default that existed upon the date of such Payment Notice or the commencement of such Payment Blockage Period (whether or not such event of default is on the same issue of Senior Indebtedness) shall be made the basis for the commencement of any other Payment Blockage Period. (d) In the event of (i) a total or partial liquidation or a dissolution of the Company, (ii) reorganization, bankruptcy, insolvency, receivership of or similar proceeding relating to the Company or its property or (iii) an assignment for the benefit of creditors or marshaling of the Company's assets and liabilities, then the holders of Senior Indebtedness will be entitled to receive payment in full in cash or Cash Equivalents in respect of Senior Indebtedness (including interest accruing after, or which would accrue but for, the commencement of any proceeding at the rate specified in the applicable Senior Indebtedness, whether or not a claim for such interest would be allowed) before the Holders will be entitled to receive any payment or distribution (except that Holders may receive (i) securities of the Company or any other company provided for by a plan of reorganization or readjustment that are subordinated at least to the same extent as the Notes are subordinated to Senior Indebtedness and (ii) payments made from any defeasance trust created pursuant to Section 8.1 hereof provided that the applicable deposit does not violate Article VIII or this Article XI), in the event of any payment or distribution of the assets or securities of the Company. In addition, until the Senior Indebtedness is paid in full in cash or Cash Equivalents, any payment or distribution to which holders of the Notes would be entitled but for the subordination provisions of the Indenture will be made to holders of the Senior Indebtedness as their interests may appear. In the event of any proceeding described in the first sentence of this Section 11.1(d), after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Notes, together with the holders of any obligations of the Company ranking pari passu with the Notes, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of, interest, if any, Additional Amounts, if any, and Liquidated Damages, if any, on the Notes and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any Capital Stock or any obligations of the Company ranking junior to the Notes and such other obligations. (e) If, notwithstanding the foregoing, any payment or distribution of any character, whether in cash, Notes or other property (other than securities of the Company or any other company provided for by a plan of reorganization or readjustment that are subordinated at least to the same extent as the Notes are subordinated to Senior Indebtedness), shall be received by the Trustee or any Holder in contravention of any of the terms hereof, such payment or distribution of Notes shall be received in trust for the benefit of and shall be paid over or delivered and transferred to the holders of the Senior Indebtedness then outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness is hereby irrevocably authorized to endorse or assign the same. Under the circumstances described in this Section 11.1, the Company or any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person making any payment or distribution of cash or other property or securities is authorized or instructed to make any payment or distribution to which the Holders would otherwise be entitled (other than securities that are subordinated at least to the same extent as the Notes are subordinated to Senior Indebtedness and payments made from any defeasance trust created pursuant to Section 8.1 hereof provided that the applicable deposit does not violate Article VIII or this Article XI) directly to the holders of the Senior Indebtedness of the Company (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness of the Company held by such holders), or their representatives, or to any trustee or trustees under any other indenture pursuant to which any such Senior Indebtedness may have been issued, as their respective interests appear, to the extent necessary to pay all such Senior Indebtedness in full, in cash or Cash Equivalents after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Indebtedness. (f) To the extent that any payment of Senior Indebtedness (whether on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred. To the extent the obligation to repay such Senior Indebtedness is declared to be fraudulent, invalid or otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then the obligation so declared fraudulent, invalid or otherwise set aside (and all other amounts that would come due with respect thereto had such obligation not become so affected) shall be deemed to be reinstated and outstanding as Senior Indebtedness for all purposes of the Indenture as if such declaration, invalidity or setting aside had not occurred. (g) No present or future holder of any Senior Indebtedness shall be prejudiced in the right to enforce subordination of the Indebtedness evidenced by the Notes by any act or failure to act on the part of the Company or any Holder of Notes. Nothing contained herein shall impair, as between the Company and the Holders of Notes, the obligation of the Company to pay to such Holders the principal of, interest, premium, if any, Additional Amounts, if any, and Liquidated Damages, if any, on such Notes or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness from time to time receive cash, Notes or other property otherwise payable or deliverable to the Holders. (and their successors and assignsh) and shall be enforceable directly by them and their respective Representatives directly against Upon the Companypayment in full of all Senior Indebtedness, each Guarantor, the Trustee and the Holders (together with holders of any Indebtedness that is pari passu with the Notes and their successors having an equivalent right of subrogation) shall be subrogated to all rights of any holders of Senior Indebtedness to receive any further payment or distributions applicable to the Senior Indebtedness until the Indebtedness evidenced by the Notes shall have been paid in full and assigns). such payments or distributions received by such Holders, by reason of such subrogation, of cash, Notes or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness, shall, as between the Company and its creditors other than the holders of Senior Indebtedness, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness, and not on account of the Notes. (i) The provisions of this Article Ten Section 11.1 shall be a continuing agreement and shall be irrevocable and shall remain in full force and effect until payment in the full not impair any rights, interests, remedies or powers of any secured creditor of the Senior Indebtedness Company in cash or cash equivalents, and shall constitute a continuing and irrevocable offer to all Persons who become holders of, or continue to hold, Senior Indebtedness (whether such Senior Indebtedness was created or acquired before or after respect of any security interest the issuance of the Notes), each creation of which holders shall be deemed for the purposes hereof to have acquired Senior Indebtedness in reliance upon is not prohibited by the provisions of this Article Ten. Indenture. (j) The provision of this Article Ten shall survive the commencement securing of any reorganization or other proceedings with respect to obligations of the Company, any Guarantor otherwise ranking pari passu with the Notes or any other Person and the discharge of any claim in connection with such Reorganization or other proceedings, including, without limitation, the discharge of any Senior Indebtedness or the Guarantee. The holders of the Senior Indebtedness and their respective Representatives are hereby authorized to demand specific performance of the provisions of this Article Ten at any time when the Company, any Guarantor or any Holder shall have failed to comply with any provision of this Article Ten applicable to it, and the Company, each Guarantor, and each Holder hereby irrevocably waives any defense based on the adequacy of a remedy at law that might be asserted as a bar ranking junior to the remedy of specific performance hereof in any action brought therefor by Notes, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking pari passu with the holders of Notes or ranking junior to the Senior Indebtedness and their respective RepresentativesNotes.

Notes Subordinated to Senior Indebtedness. (a) The Company, for itself and its successorsCompany agrees, and each Holder, Holder of the Notes by his or her acceptance of Notesthereof likewise agrees, agrees that the payment of the Principal of principal of, and interest on and any other amounts under, the Notes (all of the foregoing, a "Payment" or "Distribution") is subordinatedsubordinated and junior in right and time of payment, to the extent and in the manner provided in this Article TenIII, to the prior irrevocable payment in full in cash of all Senior Indebtedness outstanding on the date hereof and shall be senior in right of payment in full to all present and future Indebtedness (except the Senior Indebtedness) hereafter created, incurred, assumed or guaranteed by the Company. A Payment or Distribution shall include any asset of any kind or character, and that may consist of cash, securities or other property, by set-off or otherwise, and shall include, without limitation, any purchase, redemption or other acquisition of Notes or the making of any deposit of funds pursuant to this Indenture. (b) The Senior Indebtedness of the Company shall continue to be Senior Indebtedness and entitled to the benefit of these subordination provisions are for the benefit irrespective of any amendment, modification, refunding, refinancing or waiver of any term of any instrument relating to refinancing of the holders of Senior Indebtedness. The . (c) All the provisions of this Indenture and the Notes shall be subject to the provisions of this Article Ten are III so far as they may be applicable thereto, except that nothing in this Article III shall apply to claims for, or payments to, the Trustee under or pursuant to Section 8.7. (d) No right of any holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time or in any way be affected or impaired by any failure to act on the part of the Company, any Paying Agent, the Holders of the Notes, the Trustee or the holders of the Senior Indebtedness, or by any noncompliance by the Company, any Paying Agent, the Holders of the Notes or the Trustee with any of the terms, provisions and covenants of the Notes or this Indenture, regardless of any knowledge thereof that any such holder of Senior Indebtedness may have or be otherwise charged with. (e) Except for such Payments or Distributions permitted to be made to the Holders of the Notes pursuant to Section 3.3, any Payment or Distribution, whether in cash, securities or other property which would otherwise, but for the benefit terms hereof, be payable or deliverable in respect of the Subordinated Indebtedness shall be paid or delivered directly to the holders of the Senior Indebtedness until all Senior Indebtedness is irrevocably paid in full in cash and all commitments to lend under the Senior Credit Facility Documents shall have been terminated. Each of the Trustee and the Holders of the Notes irrevocably authorizes, empowers and directs any debtor, debtor in possession, receiver, trustee, liquidator, custodian, conservator or other person having authority, to pay or otherwise deliver all such Payments and Distributions to the holders of the Senior Indebtedness. Each of the Trustee and the Holders of the Notes also irrevocably authorizes and empowers the holders of the Senior Indebtedness, in the name of such Trustee and the Holders of the Notes, to demand, sue for, collect and receive any and all such Payments and Distributions. (f) Each of the Trustee and the Holders of the Notes agrees not to initiate, prosecute or participate in any claim, action or other proceeding challenging the enforceability, validity, perfection or priority of the Senior Indebtedness, any liens and security interests securing the Senior Indebtedness, any claim or adequate protection rights granted or allowed by a bankruptcy court in favor of the Senior Indebtedness or the holders of the Senior Indebtedness, the terms of any proposed orders authorizing the use of cash collateral to which a majority of the holders of the Senior Indebtedness from time to time (and their successors and assigns) and shall be enforceable directly by them and their respective Representatives directly against the Company, each Guarantor, the Trustee and the Holders (and their successors and assigns). The provisions of this Article Ten shall be a continuing agreement and shall be irrevocable and shall remain in full force and effect until payment in the full of the Senior Indebtedness in cash or cash equivalents, and shall constitute a continuing and irrevocable offer to all Persons who become holders ofconsents, or continue to hold, Senior Indebtedness (whether such Senior Indebtedness was created or acquired before or after the issuance of the Notes), each of which holders shall be deemed for the purposes hereof to have acquired Senior Indebtedness in reliance upon the provisions of this Article Ten. The provision of this Article Ten shall survive the commencement terms of any reorganization or other proceedings with respect proposed debtor-in-possession financing to the Company, any Guarantor or any other Person and the discharge of any claim in connection with such Reorganization or other proceedings, including, without limitation, the discharge of any Senior Indebtedness or the Guarantee. The holders of the Senior Indebtedness and their respective Representatives are hereby authorized to demand specific performance of the provisions of this Article Ten at any time when the Company, any Guarantor or any Holder shall have failed to comply with any provision of this Article Ten applicable to it, and the Company, each Guarantor, and each Holder hereby irrevocably waives any defense based on the adequacy of a remedy at law that might be asserted as a bar to the remedy of specific performance hereof in any action brought therefor provided by the holders of the Senior Indebtedness or otherwise supported by a majority of the holders of the Senior Indebtedness in such Proceeding, including, without limitation, any claim or objection based on lack of adequate protection with respect to the Subordinated Indebtedness. (g) Each of the Trustee and their respective Representativesthe Holders of the Notes agrees to execute, verify, deliver and file any proofs of claim in respect of the Subordinated Indebtedness requested by the holders of the Senior Indebtedness in connection with any such Proceeding and hereby irrevocably authorizes, empowers and appoints the holders of the Senior Indebtedness, its agent and attorney-in-fact to (i) execute, verify, deliver and file such proofs of claim upon the failure of the Trustee or the Holders of the Notes promptly to do so prior to 15 days before the expiration of the time to file any such proof of claim and (ii) vote such claim in any such Proceeding upon the failure of the Trustee and the Holders of the Notes to do so prior to 10 days before the expiration of the time to vote any such claim; provided that the holders of the Senior Indebtedness shall have no obligation to execute, verify, deliver, file and/or vote any such proof of claim. In the event that the holders of the Senior Indebtedness vote any claim in accordance with the authority granted hereby, the Trustee and the Holders of the Notes shall not be entitled to change or withdraw such vote. (h) The Senior Indebtedness shall continue to be treated as Senior Indebtedness and the provisions of this Article III shall continue to govern the relative rights and priorities of the holders of the Senior Indebtedness and the Trustee and the Holders of the Notes even if all or part of the Senior Indebtedness or the security interests securing the Senior Indebtedness are subordinated, set aside, avoided, invalidated or disallowed in connection with any such Proceeding, and the provisions of this Article III shall be reinstated if at any time any payment of any of the Senior Indebtedness is rescinded or must otherwise be returned by any holder of Senior Indebtedness or any representative of such holder.

Notes Subordinated to Senior Indebtedness. (a) The CompanyNotes are subordinated and junior in right of payment of the principal of and interest and all other obligations (all of the foregoing, for itself and its successorsa "PAYMENT OR DISTRIBUTION") on such Notes to the prior payment in full of any Senior Indebtedness whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed, the Notes shall comply with the provisions of this Section 8, and each HolderHolder by his acceptance thereof likewise agrees. A Payment or Distribution shall include any asset of any kind or character, and may consist of cash, securities or other property, by his set-off or her acceptance of Notesotherwise, agrees except that Holders may receive (i) securities that are subordinated to at least the payment same extent as the Notes to (A) Senior Indebtedness and (B) any securities issued in exchange for Senior Indebtedness. (b) The Senior Indebtedness of the Principal of Company shall continue to be Senior Indebtedness and interest on the Notes is subordinated, entitled to the extent and in benefit of these subordination provisions irrespective of any amendment, modification or waiver of any term of any instrument relating to refinancing of the manner provided in this Article Ten, to the right of payment in full to all present and future Senior Indebtedness, and that these whether with or without notice to Holders. (c) No right of any holder of any Senior Indebtedness to enforce subordination provisions are for as herein provided shall at any time or in any way be affected or impaired by any act or failure to act on the benefit part of the holders of Senior Indebtedness. The provisions of this Article Ten are for Company, the benefit of Holders or the holders of the Senior Indebtedness from time to time (and their successors and assigns) and shall be enforceable directly by them and their respective Representatives directly against the CompanyIndebtedness, each Guarantor, the Trustee and the Holders (and their successors and assigns). The provisions of this Article Ten shall be a continuing agreement and shall be irrevocable and shall remain in full force and effect until payment in the full of the Senior Indebtedness in cash or cash equivalents, and shall constitute a continuing and irrevocable offer to all Persons who become holders of, or continue to hold, Senior Indebtedness (whether such Senior Indebtedness was created or acquired before or after the issuance of the Notes), each of which holders shall be deemed for the purposes hereof to have acquired Senior Indebtedness in reliance upon the provisions of this Article Ten. The provision of this Article Ten shall survive the commencement of including without limitation any reorganization or other proceedings with respect to the Company, any Guarantor or any other Person and the discharge of any claim in connection with such Reorganization or other proceedings, including, without limitation, the discharge of any Senior Indebtedness or the Guarantee. The holders of the Senior Indebtedness and their respective Representatives are hereby authorized to demand specific performance of the provisions of this Article Ten at any time when the Company, any Guarantor or any Holder shall have failed to comply with any provision of this Article Ten applicable to it, and the Company, each Guarantor, and each Holder hereby irrevocably waives any defense based on the adequacy of a remedy at law that might be asserted as a bar to the remedy of specific performance hereof in any action brought therefor non-compliance by the holders of the Senior Indebtedness with any of the terms, provisions and their respective Representativescovenants of the documents evidencing or securing the Senior Indebtedness, or by any noncompliance by the Company or the Holders with any of the terms, provisions and covenants of the Notes, regardless of any knowledge thereof that any such holder of Senior Indebtedness may have or otherwise be charged with.

Notes Subordinated to Senior Indebtedness. (a) The Company, for itself Issuer covenants and its successorsagrees, and each HolderNoteholder, by his or her acceptance of Notesa Note, agrees that the payment of the Principal of likewise covenants and interest on the Notes is subordinatedagrees, that, to the extent and in the manner provided hereinafter set forth, the indebtedness represented by the Notes and the payment of principal of and interest (and any other amounts payable in this Article Ten, to respect thereof) on each and all of the Notes are hereby expressly made subordinate and subject in right of payment to the prior payment in full to of all present and future Senior IndebtednessIndebtedness of the Issuer; provided, and however, that these such subordination provisions are in right of payment shall apply only after the Issuer has been declared bankrupt or put into liquidation or otherwise dissolved (liquidado) for the benefit purposes of Brazilian law, whether voluntarily or involuntarily and whether or not such event involves insolvency or bankruptcy or after any similar event which has an analogous effect to the foregoing pursuant to the Law of Brazil has occurred (each a “Bankruptcy Event”). The Notes shall rank junior in right of payment to the payment of all the Issuer’s Senior Liabilities; pari passu among (i) themselves and (ii) with any Liabilities approved or to be approved by the Central Bank and to be classified, in whole or in part, as Tier 1 Capital or Tier 2 Capital pursuant to CMN Resolution No. 3,444 (the “Pari Passu Liabilities”); and senior to the capital stock of the holders Issuer (“Junior Liabilities”). (b) A consolidation of Senior Indebtedness. The provisions the Issuer with, or the merger of the Issuer into, another Person or the liquidation or dissolution of the Issuer after the conveyance or transfer of all or substantially all of its assets and Liabilities (including the Notes issued under this Indenture) to another Person shall not be deemed a Bankruptcy Event for the purposes of this Article Ten are for 12 if that Person shall, as a part of such consolidation, merger, conveyance or transfer, substitute the benefit Issuer and exercise every right and power of the holders of Issuer under this Indenture and the Senior Indebtedness from time to time (Notes with the same effect as if such successor Person had been named as the Issuer in this Indenture and their successors the Notes, and assigns) and thereafter the predecessor Person shall be enforceable directly by them relieved of all obligations and their respective Representatives directly against the Company, each Guarantor, the Trustee covenants under this Indenture and the Holders (and their successors and assigns). The provisions of this Article Ten shall be a continuing agreement and shall be irrevocable and shall remain in full force and effect until payment in the full of the Senior Indebtedness in cash or cash equivalents, and shall constitute a continuing and irrevocable offer to all Persons who become holders of, or continue to hold, Senior Indebtedness (whether such Senior Indebtedness was created or acquired before or after the issuance of the Notes), each of which holders shall be deemed for the purposes hereof to have acquired Senior Indebtedness in reliance upon the provisions of this Article Ten. The provision of this Article Ten shall survive the commencement of any reorganization or other proceedings with respect to the Company, any Guarantor or any other Person and the discharge of any claim in connection with such Reorganization or other proceedings, including, without limitation, the discharge of any Senior Indebtedness or the Guarantee. The holders of the Senior Indebtedness and their respective Representatives are hereby authorized to demand specific performance of the provisions of this Article Ten at any time when the Company, any Guarantor or any Holder shall have failed to comply with any provision of this Article Ten applicable to it, and the Company, each Guarantor, Notes will continue to be Outstanding and each Holder hereby irrevocably waives any defense based on the adequacy will be treated as subordinated debt of a remedy at law that might be asserted as a bar such Person pursuant to the remedy terms of specific performance hereof in any action brought therefor by the holders of the Senior Indebtedness and their respective RepresentativesCMN Resolution No. 3,444.