Common use of Securities Subordinate to Senior Indebtedness Clause in Contracts

Securities Subordinate to Senior Indebtedness. Anything in this Indenture or the Securities to the contrary notwithstanding, the Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article, the Indebtedness represented by the Securities and the payment of the principal of, premium, if any, and interest on (including any payment required under any provision of this Indenture and the Securities, including Sections 10.12 and 10.13), each and all of the Securities and the other Indenture Obligations are hereby expressly made subordinate and subject in right of payment as provided in this Article to the prior payment in full, in cash or Cash Equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, of the Senior Indebtedness (including any interest accruing after the occurrence of an Event of Default under Section 5.1(g) or (h), whether or not such interest is an allowed claim enforceable against the debtor in a case brought under the Bankruptcy Law). As used in this Indenture and the Securities, “paying the Securities”, “payment of the Securities” and similar phrases mean any direct or indirect payment or distribution by or on behalf of the Company on account of principal of (or premium, if any) or interest on the Securities, the Indenture Obligations or other amounts owed by the Company under this Indenture and the Securities (other than amounts owing to the Trustee pursuant to Section 6.7 hereof) or to acquire or repurchase pursuant to the provisions of this Indenture or redeem, retire or defease all or any portion of the Securities or to make any deposit, payment or transfer in furtherance of the foregoing. This Article XIII shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders or continue to hold Senior Indebtedness; and such provisions are made for the benefits of the holders of Senior Indebtedness; and such holders are made obligees hereunder and they or each of them may enforce such provisions. The holders of Senior Notes shall have the right to rely upon this Article XIII, and no amendment or modification of the provisions contained herein shall diminish the rights of such holders unless such holders shall have agreed in writing thereto.

Securities Subordinate to Senior Indebtedness. Anything The Company covenants and agrees that anything in this Indenture or the Securities of any series to the contrary notwithstanding, the Company covenants indebtedness evidenced by the Securities of each series is subordinate and agreesjunior in right of payment to all Senior Indebtedness to the extent provided herein, and each Holder of a SecuritySecurities of each series, by his its acceptance thereof, likewise covenants and agrees, that, agrees to the extent subordination herein provided and in the manner hereinafter set forth in this Article, the Indebtedness represented shall be bound by the Securities provisions hereof. Senior Indebtedness shall continue to be Senior Indebtedness and the payment of the principal of, premium, if any, and interest on (including any payment required under any provision of this Indenture and the Securities, including Sections 10.12 and 10.13), each and all of the Securities and the other Indenture Obligations are hereby expressly made subordinate and subject in right of payment as provided in this Article entitled to the prior payment in fullbenefits of these subordination provisions irrespective of any amendment, in cash modification or Cash Equivalents or, as acceptable to the holders waiver of Senior Indebtedness, in any other manner, term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. The Securities shall rank pari passu with, and not be “Senior Indebtedness” with respect to, the indebtedness referred to in clause (including any interest accruing after a) of the occurrence definition of an Event “Senior Indebtedness” set forth in Section 101. Each series of Default under Section 5.1(g) or (h), whether or not such interest is an allowed claim enforceable against the debtor in a case brought under the Bankruptcy Law)Securities shall rank pari passu with each other series. As used in this Indenture and the SecuritiesSection 1301, “paying pari passu” means ranking equally in right of payment upon the Securities”, “happening of any of the events described in the first sentence of the third paragraph of this Section 1301. In the event that the Company shall default in the payment of the Securities” and similar phrases mean any direct or indirect payment or distribution by or on behalf of the Company on account of principal of (or premium, if any) or interest on any Senior Indebtedness when the Securitiessame becomes due and payable, the Indenture Obligations whether at maturity or other amounts owed at a date fixed for prepayment or by declaration or otherwise, then, upon written notice of such default to the Company under this Indenture and the Securities (other than amounts owing to the Trustee pursuant to Section 6.7 hereof) or to acquire or repurchase pursuant to the provisions of this Indenture or redeem, retire or defease all or any portion of the Securities or to make any deposit, payment or transfer in furtherance of the foregoing. This Article XIII shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders or continue to hold Senior Indebtedness; and such provisions are made for the benefits of by the holders of Senior Indebtedness; Indebtedness or any trustee therefor, unless and until such holders are made obligees hereunder and they or each of them may enforce such provisions. The holders of Senior Notes default shall have the right been cured or waived or shall have ceased to rely upon this Article XIIIexist, and no amendment direct or modification indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the provisions contained herein shall diminish principal of (or premium, if any) or interest on any of the rights Securities, or in respect of such holders unless such holders shall have agreed in writing thereto.any redemption, retirement, purchase or other acquisition of any of the Securities. In the event of

Securities Subordinate to Senior Indebtedness. Anything in this Indenture or the Securities to the contrary notwithstanding, the Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article, the Indebtedness represented by the Securities and the payment of the principal of, premium, if any, and interest on (including any payment required under any provision of this Indenture and the Securities, including Sections 10.12 and 10.13), each and all of the Securities and the other Indenture Obligations are hereby expressly made subordinate and subject in right of payment as provided in this Article to the prior payment in full, in cash or Cash Equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, of the Senior Indebtedness (including any interest accruing after the occurrence of an Event of Default under Section 5.1(g) or (h), whether or not such interest is an allowed claim enforceable against the debtor in a case brought under the Bankruptcy Law). As used in this Indenture and the Securities, “"paying the Securities”", “"payment of the Securities” " and similar phrases mean any direct or indirect payment or distribution by or on behalf of the Company on account of principal of (or premium, if any) or interest on the Securities, the Indenture Obligations or other amounts owed by the Company under this Indenture and the Securities (other than amounts owing to the Trustee pursuant to Section 6.7 hereof) or to acquire or repurchase pursuant to the provisions of this Indenture or redeem, retire or defease all or any portion of the Securities or to make any deposit, payment or transfer in furtherance of the foregoing. This Article XIII Thirteen shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders or continue to hold Senior Indebtedness; and such provisions are made for the benefits of the holders of Senior Indebtedness; and such holders are made obligees hereunder and they or each of them may enforce such provisions. The holders of Senior Notes shall have the right to rely upon this Article XIII, and no amendment or modification of the provisions contained herein shall diminish the rights of such holders unless such holders shall have agreed in writing thereto.

Securities Subordinate to Senior Indebtedness. Anything in this Indenture or the Securities to the contrary notwithstanding, the The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, for the benefit of the holders, from time to time, of Senior Indebtedness that, to the extent and in the manner hereinafter set forth in this Article, the Indebtedness represented by the Securities and the payment of the principal of, of (and premium, if any, on) and interest on (including any payment required under any provision of this Indenture and the Securities, including Sections 10.12 and 10.13), each and all of the Securities, and all other amounts of any kind whatsoever payable in respect of the Securities, including, without limitation, on account of any purchase or redemption or other acquisition of Securities and or any claim for rescission or damages (collectively, the other Indenture Obligations "Subordinated Obligations"), are hereby expressly made subordinate and subject in right of payment as provided in this Article to the prior payment in full, full in cash or Cash Equivalents or, as acceptable to the holders of all Senior Indebtedness; provided, in any other mannerhowever, of the Senior Indebtedness (including any interest accruing after the occurrence of an Event of Default under Section 5.1(g) or (h), whether or not such interest is an allowed claim enforceable against the debtor in a case brought under the Bankruptcy Law). As used in this Indenture and that the Securities, “paying the Securities”, “Indebtedness represented thereby and the payment of the Securities” and similar phrases mean any direct or indirect payment or distribution by or on behalf of the Company on account of principal of (or and premium, if any, on) or and interest on the SecuritiesSecurities in all respects shall rank pari passu with, the Indenture Obligations or senior in right of payment to, all other amounts owed by existing and future Indebtedness of the Company under this Indenture and the Securities (other than amounts owing that is subordinated to the Trustee pursuant to Section 6.7 hereof) or to acquire or repurchase pursuant to the Senior Indebtedness. The provisions of this Indenture or redeem, retire or defease all or any portion of the Securities or to make any deposit, payment or transfer in furtherance of the foregoing. This Article XIII Fourteen shall constitute a continuing offer to all Persons whothat, in reliance upon such provisions, become holders of, or continue to hold Senior Indebtedness; and such provisions are made for the benefits benefit of the holders of Senior Indebtedness; and such holders are made obligees hereunder Indebtedness and they or each of them may enforce such provisions. The the rights of holders of Senior Notes shall have Indebtedness hereunder, subject to the right to rely upon this Article XIII, terms and no amendment or modification of the provisions contained herein shall diminish the rights of such holders unless such holders shall have agreed in writing theretohereof.

Securities Subordinate to Senior Indebtedness. Anything in this Indenture or the Securities to the contrary notwithstanding, the The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, for the benefit of the holders, from time to time, of Senior Indebtedness, that, to the extent and in the manner hereinafter set forth in this ArticleArticle 14, the Indebtedness ---------- represented by the Securities and the payment of the principal of, of (and premium, if any, on) and interest on (including any payment required under any provision of this Indenture and the Securities, including Sections 10.12 and 10.13), each and all of the Securities and the other Indenture Obligations are hereby expressly made subordinate and subject in right of payment as provided in this Article 14 ---------- to the prior payment in full, in cash or Cash Equivalents or, as acceptable to the holders full of all Senior Indebtedness, in any other mannerwhich will include borrowings under the Credit Facility, of the including Senior Indebtedness (including any interest accruing incurred after the occurrence of an Event of Default under Section 5.1(g) or (h)date the Initial Securities are first issued, whether or not such interest is an allowed claim enforceable against outstanding on 103 the debtor in a case brought under the Bankruptcy Law). As used in date of this Indenture and or thereafter created, incurred, assumed or guaranteed; provided, however, that the Securities, “paying the Securities”, “Indebtedness represented thereby and the payment of the Securities” and similar phrases mean any direct or indirect payment or distribution by or on behalf of the Company on account of principal of (or and premium, if any, on) or and interest on the SecuritiesSecurities in all respects will rank equally with, the Indenture Obligations or other amounts owed by prior to, all existing and future unsecured Indebtedness (including, without limitation, Indebtedness) of the Company under this Indenture and the Securities (other than amounts owing that is subordinated to the Trustee pursuant to Section 6.7 hereof) or to acquire or repurchase pursuant to the provisions of this Indenture or redeem, retire or defease all or any portion of the Securities or to make any deposit, payment or transfer in furtherance of the foregoingSenior Indebtedness. This Article XIII shall 14 will constitute a continuing offer to all Persons who, in ---------- reliance upon such provisions, become holders of, or continue to hold hold, Senior Indebtedness; , and such provisions are made for the benefits benefit of the holders of Senior Indebtedness; , and such holders are made obligees hereunder and they any one or each more of them may enforce such provisions. The holders of Senior Notes shall have the right to rely upon this Article XIII, and no amendment or modification of the provisions contained herein shall diminish the rights of such holders unless such holders shall have agreed in writing thereto.

Securities Subordinate to Senior Indebtedness. Anything Except to the extent otherwise specified pursuant to, or contemplated by, Section 3.01, the Securities shall be subordinated to Senior Indebtedness as set forth in this Indenture or the Securities to the contrary notwithstanding, Article Fourteen and the Company covenants and agrees, agrees that the indebtedness evidenced by the Securities of each series (and each any coupons appurtenant thereto) is subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness to the extent provided in this Article Fourteen and that all Securities issued under this Indenture shall be issued subject to the provisions of this Article Fourteen. Each Holder (whether upon original issue or upon the registration of a Security, transfer or exchange of) any Security issued under this Indenture (or any coupons appurtenant thereto) covenant and agrees to be bound by his acceptance thereof, likewise covenants and agrees, thatthe provisions of this Article Fourteen. All Securities issued under this Indenture shall, to the extent and in the manner hereinafter set forth in this ArticleArticle Fourteen, the Indebtedness represented by the Securities and the payment of the principal of, premium, if any, and interest on (including any payment required under any provision of this Indenture and the Securities, including Sections 10.12 and 10.13), each and all of the Securities and the other Indenture Obligations are hereby expressly made be subordinate and subject junior in right of payment as provided in this Article to the prior payment in full, in cash or Cash Equivalents or, as acceptable to the holders full of all Senior Indebtedness, in any other manner, of the Senior Indebtedness (including any interest accruing after the occurrence of an Event of Default under Section 5.1(g) or (h), whether or not such interest is an allowed claim enforceable against the debtor in a case brought under the Bankruptcy Law). As used in this Indenture and the Securities, “paying the Securities”, “payment of the Securities” and similar phrases mean any direct or indirect payment or distribution by or on behalf of the Company on account of principal of (or premium, if any) or interest on the Securities, the Indenture Obligations or other amounts owed by the Company under this Indenture and the Securities (other than amounts owing to the Trustee pursuant to Section 6.7 hereof) or to acquire or repurchase pursuant to the The provisions of this Indenture or redeem, retire or defease all or any portion of the Securities or to make any deposit, payment or transfer in furtherance of the foregoing. This Article XIII shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders or continue to hold Senior Indebtedness; and such provisions Fourteen are made for the benefits benefit of the holders of Senior Indebtedness; Indebtedness and such holders are made obligees hereunder and they or each of them may shall, at any time, be entitled to enforce such provisionsprovisions against the Company or any Holders of Securities. The holders of Senior Notes Indebtedness shall have continue to be Senior Indebtedness and entitled to the right to rely upon this Article XIII, and no amendment or modification benefits of the provisions contained herein shall diminish of this Article Fourteen irrespective of any amendment, modification or waiver of any term of the rights Senior Indebtedness or extension or renewal of such holders unless such holders shall have agreed in writing theretothe Senior Indebtedness.

Securities Subordinate to Senior Indebtedness. Anything in this Indenture or the Securities to the contrary notwithstanding, the Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article, the Indebtedness represented by the Securities and the payment of the principal of, premium, if any, and interest on (including any payment required under any provision of this Indenture and the Securities, including Sections 10.12 and 10.13), each and all of the Securities and the other Indenture Obligations are hereby expressly made subordinate and subject in right of payment as provided in this Article to the prior payment in full, in cash or Cash Equivalents or, as acceptable to the holders each affected holder of Senior Indebtedness, in any other manner, of the Senior Indebtedness (including any interest accruing after the occurrence of an Event of Default under Section 5.1(g) or (h), whether or not such interest is an allowed claim enforceable against the debtor in a case brought under the Bankruptcy Law). As used in this Indenture and the Securities, “paying the Securities”, “payment of the Securities” and similar phrases mean any direct or indirect payment or distribution by or on behalf of the Company on account of principal of (or premium, if any) or interest on the Securities, the Indenture Obligations or other amounts owed by the Company under this Indenture and the Securities (other than amounts owing to the Trustee pursuant to Section 6.7 hereof) or to acquire or repurchase pursuant to the provisions of this Indenture or redeem, retire or defease all or any portion of the Securities or to make any deposit, payment or transfer in furtherance of the foregoing. This Article XIII shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders or continue to hold Senior Indebtedness; and such provisions are made for the benefits of the holders of Senior Indebtedness; and such holders are made obligees hereunder and they or each of them may enforce such provisions. The holders of Senior Notes Indebtedness shall have the right to rely upon this Article XIII, and no amendment or modification of the provisions contained herein shall diminish the rights of such holders unless such holders shall have agreed in writing thereto.

Securities Subordinate to Senior Indebtedness. Anything in this Indenture or the Securities to the contrary notwithstanding, the (a) The --------------------------------------------- Company covenants and agrees, and each Holder of a SecurityHolder, by his its acceptance thereof, likewise covenants and agrees, for the benefit of the Holders, from time to time, of Senior Indebtedness that, to the extent and in the manner hereinafter set forth in this Article, the Indebtedness represented by the Securities and the payment of the principal of, premiumof (and premium and liquidated damages, if any, ) and interest on (including any payment required under any provision of this Indenture and the Securities, including Sections 10.12 and 10.13), each and all of the Securities and the other Indenture Obligations are hereby expressly made subordinate and subject in right of payment as provided in this Article to the prior payment in full, full in cash or Cash Equivalents or, as acceptable to the holders of all Senior Indebtedness, in any other manner, whether outstanding on the date of the Senior Indebtedness (including any interest accruing after the occurrence of an Event of Default under Section 5.1(g) or (h), whether or not such interest is an allowed claim enforceable against the debtor in a case brought under the Bankruptcy Law). As used in this Indenture and or thereafter Incurred; provided, however, that the Securities, “paying -------- ------- the Securities”, “Indebtedness represented thereby and the payment of the Securities” and similar phrases mean any direct or indirect payment or distribution by or on behalf of the Company on account of principal of (or premiumand premium and liquidated damages, if any) or and interest on the SecuritiesSecurities in all respects shall rank pari passu with, or prior to, all existing and future ---- ----- unsecured indebtedness (including, without limitation, Indebtedness) of the Company that is subordinated to Senior Indebtedness. The Securities shall in all respects rank pari passu with all other Senior Subordinated Indebtedness of the ---- ----- Company, including the Discount Notes, and only Indebtedness of the Company that is Senior Indebtedness of the Company shall rank senior to the Securities in accordance with the provisions set forth herein. For purposes of this Article 10, the Indenture Obligations or other amounts owed Indebtedness evidenced by the Company under this Indenture and Securities shall be deemed to include the Securities (other than amounts owing to the Trustee pursuant to Section 6.7 hereof) or to acquire or repurchase liquidated damages payable pursuant to the provisions set forth in the Securities and the Registration Agreement. All provisions of this Indenture or redeem, retire or defease all or any portion of the Securities or Article 10 shall be subject to make any deposit, payment or transfer in furtherance of the foregoing. This Article XIII shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders or continue to hold Senior Indebtedness; and such provisions are made for the benefits of the holders of Senior Indebtedness; and such holders are made obligees hereunder and they or each of them may enforce such provisions. The holders of Senior Notes shall have the right to rely upon this Article XIII, and no amendment or modification of the provisions contained herein shall diminish the rights of such holders unless such holders shall have agreed in writing theretoSection 10.16.

Securities Subordinate to Senior Indebtedness. Anything in this Indenture or the Securities to the contrary notwithstanding, the The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this ArticleArticle 10, the Indebtedness represented by the Securities and the payment of the principal ofprincipal, premium, premium (if any), Equity Offering Redemption Price, Redemption Price, Change of Control Offer Price, Net Proceeds Offer Price or interest (if any), and interest any other payments required hereunder, on (including any payment required under any provision of this Indenture and the Securities, including Sections 10.12 and 10.13), each and all of the Securities and the other Indenture Obligations are hereby expressly made subordinate and subject in right of payment as provided in this Article 10 to the prior payment in full, in cash full of all Senior Indebtedness including any payment of any Senior Indebtedness that is rescinded or Cash Equivalents or, as acceptable to the holders must otherwise be returned by any holder of Senior IndebtednessIndebtedness upon the insolvency, in any other manner, bankruptcy or reorganization of the Senior Indebtedness (including any interest accruing after the occurrence of an Event of Default under Section 5.1(g) or (h)Company, whether or all as though such payment had not such interest is an allowed claim enforceable against the debtor in a case brought under the Bankruptcy Law). As used in this Indenture and the Securitiesbeen made; provided, “paying the Securities”however, “payment of the Securities” and similar phrases mean any direct or indirect payment or distribution by or on behalf of the Company on account of principal of (or premium, if any) or interest on that the Securities, the Indenture Obligations or other amounts owed by the Company under this Indenture Indebtedness represented thereby and the Securities payment of the principal, premium (if any), Equity Offering Redemption Price, Redemption Price, Change of Control Offer Price, Net Proceeds Offer Price or interest (if any), and any other than amounts owing to the Trustee pursuant to Section 6.7 hereof) or to acquire or repurchase pursuant to the provisions of this Indenture or redeem, retire or defease payments required hereunder on each and all or any portion of the Securities in all respects shall rank equally with, or to make any depositprior to, payment or transfer in furtherance all existing and future indebtedness (including, without limitation, Indebtedness) of the foregoingCompany that is subordinated to Senior Indebtedness. This Article XIII 10 shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold Senior Indebtedness; and such provisions are made for the benefits benefit of the holders of Senior Indebtedness; and such holders are made obligees hereunder and they or each of them may enforce such provisions. The holders of Senior Notes shall have the right to rely upon this Article XIII, and no amendment or modification of the provisions contained herein shall diminish the rights of such holders unless such holders shall have agreed in writing thereto.