Common use of Subordination of Notes to Senior Indebtedness Clause in Contracts

Subordination of Notes to Senior Indebtedness. The Indebtedness evidenced by the Notes and all renewals and extensions thereof, all obligations of the Company under this Agreement, the Certificate of Designation, and all other instruments and agreements arising out of or relating to any or all of the foregoing and all renewals and extensions thereof (collectively called the "Junior Indebtedness") shall at all times be wholly subordinate and junior in right of payment to any and all Senior Indebtedness of the Company (including any claims by the holders of such Senior Indebtedness for interest accruing after any assignment for the benefit of creditors by the Company or the institution by or against the Company of any proceedings under the Bankruptcy Code or any law for the relief of or relating to debtors, or any other claim by such holders for any such interest which would have accrued in the absence of such assignment or the institution of such proceedings) in the manner and with the force and effect hereafter set forth: (a) In the event of any liquidation, dissolution or winding up of the Company, or of any execution, sale, receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization or other similar proceeding relative to the Company or its property, all sums owing on all Senior Indebtedness of the Company (including cash collateral and amounts not yet due and payable) shall first be paid in full before any payment is made upon the Junior Indebtedness; and in any such event any payment or distribution of any kind or character, whether in cash, property, or securities which shall be made upon or in respect of the Junior Indebtedness shall be paid over to the holders of the Senior Indebtedness of the Company, pro rata, for application in payment thereof unless and until such Senior Indebtedness shall have been paid or satisfied in full. In case of any assignment for the benefit of creditors by the Company or in case any proceedings under the Bankruptcy Code or any other law for the relief of or relating to debtors are instituted by or against the Company, or in case of the appointment of any receiver for the Company's business or assets, or in case of any dissolution or winding up of the affairs of the Company, the Company and any assignee, trustee in bankruptcy, receiver, debtor in possession or other person or persons in charge are hereby directed to pay to the holders of the Senior Indebtedness of the Company the full amount of such holders' claims against the Company (including interest to the date of payment) before making any payments to the holders of Junior Indebtedness, and insofar as may be necessary for that purpose, the Purchaser hereby assign and transfer to the holders of Senior Indebtedness of the Company all rights to any payments, dividends or other distributions. (b) In the event that all or any part of the Junior Indebtedness is declared or becomes due and payable because of the occurrence of any Event of Default or otherwise than at the option of the Company (other than pursuant to its terms at its final maturity), under circumstances when the foregoing clause (a) shall not be applicable, the holders of the Junior Indebtedness shall be entitled to payments only after there shall first have been paid in full all Senior Indebtedness of the Company or payment shall have been provided therefor in a manner satisfactory to the holders of such Senior Indebtedness. (c) Upon the occurrence of an event which is, or with the lapse of time or notice or both would be, an event which gives any holder of any Senior Indebtedness of the Company the right to demand payment, cash collateral, accelerate the maturity, or terminate any commitment to further extend credit, no payment shall be made on any Junior Indebtedness if either: (i) notice of such default in writing or by telegram has been given to the Company by any holder of any Senior Indebtedness of the Company, provided that judicial proceedings shall be commenced with respect to such default (x) within 180 days thereafter if such default consists of the nonpayment of principal, interest, or any other sum due on such Senior Indebtedness, or (y) within 180 days after the earlier of (i) the giving of such notice or (ii) the date on which such holder is entitled to institute judicial proceedings, or (ii) judicial proceedings shall be pending in respect of such default. The holder of any portion of Senior Indebtedness of the Company shall not be entitled to give notice pursuant to this clause (c) more than once with respect to any default which was specified in such notice and which has continued without interruption since the date such notice was given, nor shall such holder be entitled to give a separate notice with respect to any default not so specified which (to the knowledge of the holder giving notice) was existing on the date such notice was given pursuant to this clause (c) and which has continued without interruption from the date such notice was given. Upon receipt of any notice from any holder of any Senior Indebtedness pursuant to this clause (c), the Company shall forthwith send a copy thereof to each holder of Junior Indebtedness and each holder of its Senior Indebtedness at the time outstanding. (d) All payments, cash, or noncash distributions made to the holders of Junior Indebtedness which should have been made to the holders of Senior Indebtedness of the Company shall be received and held by the former in trust for the benefit of the latter, and the holders of Junior Indebtedness shall forthwith remit such payments, cash, or noncash distributions to the holders of the Senior Indebtedness of the Company, pro rata, in the form in which it was received, together with such endorsements or documents as may be necessary to effectively negotiate or transfer the same to the holders of the Senior Indebtedness of the Company. (e) Each holder of Senior Indebtedness of the Company is hereby authorized by the Purchaser to: (i) renew, compromise, extend, accelerate or otherwise change the time of payment, or any other terms, of any Senior Indebtedness of the Company held by such holder; (ii) increase or decrease the rate of interest payable thereon or any part thereof; (iii) exchange, enforce, waive or release any security therefor; (iv) apply such security and direct the order or manner of sale thereof in such manner as such holder may at its discretion determine; and/or (v) release the Company or any guarantor of any Senior Indebtedness of the Company from liability. If any such action is taken, the Company shall promptly notify the Purchaser and any holder of Junior Indebtedness. Notwithstanding anything set forth in this Section 11.1, nothing set forth herein shall restrict holders of the Notes and Preferred Stock from exercising their rights of conversion hereunder.

Subordination of Notes to Senior Indebtedness. The Indebtedness evidenced by the Notes and all modifications, renewals and extensions thereof, all obligations of the Company under this Agreement, the Certificate of Designation, the Warrant Agreement and all other instruments and agreements arising out of or relating to any or all of the foregoing and all modifications, renewals and extensions thereof (collectively called the "Junior Indebtedness") shall at all times be wholly subordinate and junior in right of payment to any and all Senior Indebtedness of the Company (including any claims by the holders of such Senior Indebtedness for interest accruing after any assignment for the benefit of creditors by the Company or the institution by or against the Company of any proceedings under the Bankruptcy Code or any law for the relief of or relating to debtors, or any other claim by such holders for any such interest which would have accrued in the absence of such assignment or the institution of such proceedings) in the manner and with the force and effect hereafter set forth: (a) In the event of any liquidation, dissolution or winding up of the Company, or of any execution, sale, receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization or other similar proceeding relative to the Company or its propertyproperty (including any Subsidiary of the Company), all sums owing on in respect of all Senior Indebtedness of the Company (including cash collateral and amounts not yet due and payable) shall first be paid in full before any payment (other than distributions of Permitted Junior Securities) is made upon in respect of the Junior Indebtedness; and in any such event any payment or distribution of any kind or character, whether in cash, -42- 49 property, or securities (excluding Permitted Junior Securities), which shall be made upon or in respect of the Junior Indebtedness shall be paid over to the holders of the Senior Indebtedness of the Company, pro rata, for application in payment thereof unless and until such Senior Indebtedness shall have been paid or satisfied in full. In case of any assignment for the benefit of creditors by the Company or in case any proceedings under the Bankruptcy Code or any other law for the relief of or relating to debtors are instituted by or against the Company, or in case of the appointment of any receiver for the Company's business or assetsassets (including any Subsidiary of the Company), or in case of any liquidation, dissolution or winding up of the affairs of the Company, the Company and any assignee, trustee in bankruptcy, receiver, debtor in possession or other person or persons in charge are hereby directed to pay to the holders of the Senior Indebtedness of the Company the full amount of such holders' claims against the Company (including interest to the date of payment) before making any payments (excluding distributions of Permitted Junior Securities) to the holders of Junior Indebtedness, and insofar as may be necessary for that purpose, the Purchaser Purchasers hereby assign and transfer to the holders of Senior Indebtedness of the Company all rights to any payments, dividends or other distributions. (b) In the event that all or any part of the Junior Indebtedness is declared or becomes due and payable because of the occurrence of any Event of Default or otherwise than at the option of the Company (other than or pursuant to its terms at its final maturity), under circumstances when the foregoing clause subsection (a) shall not be applicable, the holders of the Junior Indebtedness shall be entitled to payments (excluding distributions of Permitted Junior Securities) only after there shall first have been paid in full all Senior Indebtedness of the Company or payment shall have been provided therefor in a manner satisfactory to the holders of such Senior Indebtedness. (c) Upon the occurrence for any reason of an any payment default in respect of any Senior Indebtedness of the Company (including any payment default arising or existing because of the acceleration of the maturity of all or any part of such Senior Indebtedness), regardless of whether nonpayment results from or is authorized, permitted or excused by any stay or other similar event, no payment (excluding distributions of Permitted Junior Securities) may be made on any Junior Indebtedness unless and until such default shall have been cured or waived in writing or shall have ceased to exist. (d) Without limiting the foregoing subsection 11.1(c), no payment (excluding distributions of Permitted Junior Securities) may be made on any Junior Indebtedness if any event which (other than (i) a payment default described in subsection 11.1(c) or (ii) a cross-default under the Revolving Credit Facility arising solely from the Company's failure to perform any of its covenants in Section 6 hereof) that is, or with the lapse of time or notice or both would be, an event which that gives any holder of any Senior Indebtedness of the Company the right to demand payment, payment or cash collateral, accelerate the maturity, maturity of such Senior Indebtedness or terminate any commitment to further extend credit, no payment shall be made on any Junior Indebtedness credit and if either: (i) such holder gives notice of such default in writing (including notices by telegram, telex or by telegram has been given facsimile) to the Company and to FFT (a "Blockage Notice"). A Blockage Notice shall be effective as follows: (i) A Blockage Notice issued prior to January 26, 2000 shall be effective for a period commencing on the date of issuance and ending on the earlier to occur of (A) the day that is one hundred eighty (180) days after the date of issuance, or (B) the date on which the Indebtedness evidenced by the Note matures, or (C) the date on which any holder of any Senior Indebtedness commences the institution of the Company, provided that judicial proceedings shall be commenced with respect a civil action to such default (x) within 180 days thereafter if such default consists of the nonpayment of principal, interest, or any other sum due on collect such Senior Indebtedness, Indebtedness or (y) within 180 days after the earlier of (i) the giving of such notice or (iiD) the date on which such holder is entitled to institute judicial proceedingsevent of default or potential event of default shall have been waived or cured; provided, orhowever that in all events a Blockage Notice shall be effective for a period of not less than five (5) days after the date of issuance; and (ii) judicial proceedings A Blockage Notice issued on or after January 26, 2000 shall be pending in respect effective for a period commencing on the date of such defaultissuance and ending on the day that is five (5) days after the date of issuance. The No holder of any portion of Senior Indebtedness of the Company shall not be entitled to give notice pursuant to this clause subsection (cd) more than once with respect to any default which was specified in such notice and which has continued without interruption since the date such notice was given, nor shall such holder be entitled to give a separate notice with respect to any default not so specified which (to the knowledge of the holder giving notice) was existing on the date such notice was given pursuant to this clause subsection (cd) and which has continued without interruption from the date such notice was given. Upon receipt of any notice from any holder of any Senior Indebtedness of the Company pursuant to this clause subsection (cd), the Company shall forthwith send a copy thereof to each holder of Junior Indebtedness and each holder of its Senior Indebtedness at the time outstanding. (de) All payments, cashor other distributions (whether in cash or other property, or noncash but excluding distributions of Permitted Junior Securities) made to the holders of Junior Indebtedness which are made at any time that such payments or other distributions were not permitted under the Revolving Credit Agreement or hereunder or which should have been made to the holders of Senior Indebtedness of the Company shall be received and held by the former in trust for the benefit of the latter, and the holders of Junior Indebtedness shall forthwith remit such payments, cash, payments or noncash distributions to the holders of the Senior Indebtedness of the Company, pro rata, in the form in which it was received, together with such endorsements or documents as may be necessary to effectively negotiate or transfer the same to the holders of the Senior Indebtedness of the Company. (ef) Each holder of Senior Indebtedness of the Company is hereby authorized by the Purchaser Purchasers to: (i) renew, compromise, extend, accelerate or otherwise change the time of payment, or any other termsterms or conditions, of any Senior Indebtedness of the Company held by such holder; (ii) increase or decrease the rate of interest payable thereon or any part thereof; (iii) obtain, accept, exchange, enforce, waive or release any security therefor; (iv) apply such security and direct the order or manner of sale of any such security and the application of the proceeds thereof in such manner as such holder may at its discretion determine; and/or (v) release the Company or any guarantor of any Senior Indebtedness of the Company from liability. If any such action is taken, the Company shall promptly notify the Purchaser Purchasers and any holder of Junior Indebtedness. Notwithstanding anything set forth in this Section 11.1, nothing set forth herein shall restrict holders of the Notes and Preferred Stock from exercising their rights of conversion hereunder.

Subordination of Notes to Senior Indebtedness. The Indebtedness evidenced by the Notes and all renewals and extensions thereof, all obligations of the Company under this Agreement, the Certificate of Designation, and all other instruments and agreements arising out of or relating to any or all of the foregoing and all renewals and extensions thereof (collectively called the "Junior Indebtedness") shall at all times be wholly subordinate and junior in right of payment to any and all Senior Indebtedness of the Company (including any claims by the holders of such Senior Indebtedness for interest accruing after any assignment for the benefit of creditors by the Company or the institution by or against the Company of any proceedings under the Bankruptcy Code or any law for the relief of or relating to debtors, or any other claim by such holders for any such interest which would have accrued in the absence of such assignment or the institution of such proceedings) in the manner and with the force and effect hereafter set forth: (a) In the event of any liquidation, dissolution or winding up of the Company, or of any execution, sale, receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization or other similar proceeding relative to the Company or its property, all sums owing on all Senior Indebtedness of the Company (including cash collateral and amounts not yet due and payable) shall first be paid in full before any payment is made upon the Junior Indebtedness; and in any such event any payment or distribution of any kind or character, whether in cash, property, or securities which shall be made upon or in respect of the Junior Indebtedness shall be paid over to the holders of the Senior Indebtedness of the Company, pro rata, for application in payment thereof unless and until such Senior Indebtedness shall have been paid or satisfied in full. In case of any assignment for the benefit of creditors by the Company or in case any proceedings under the Bankruptcy Code or any other law for the relief of or relating to debtors are instituted by or against the Company, or in case of the appointment of any receiver for the Company's business or assets, or in case of any dissolution or winding up of the affairs of the Company, the Company and any assignee, trustee in bankruptcy, receiver, debtor in possession or other person or persons in charge are hereby directed to pay to the holders of the Senior Indebtedness of the Company the full amount of such holders' claims against the Company (including interest to the date of payment) before making any payments to the holders of Junior Indebtedness, and insofar as may be necessary for that purpose, the Purchaser hereby assign assigns and transfer transfers to the holders of Senior Indebtedness of the Company all rights to any payments, dividends or other distributions. The Purchaser agrees not to file or join in any petition to commence any proceeding under the Bankruptcy Code (or other law for the relief of or relating to debtors) so long as any Senior Indebtedness of the Company is outstanding. (b) In the event that all or any part of the Junior Indebtedness is declared or becomes due and payable because of the occurrence of any Event of Default or otherwise than at the option of the Company (other than pursuant to its terms at its final maturity), under circumstances when the foregoing clause (a) shall not be applicable, the holders of the Junior Indebtedness shall be entitled to payments only after there shall first have been paid in full all Senior Indebtedness of the Company or payment shall have been provided therefor in a manner satisfactory to the holders of such Senior Indebtedness. (c) Upon the occurrence of an event which is, or with the lapse of time or notice or both would be, an event which gives any holder of any Senior Indebtedness of the Company the right to demand payment, cash collateral, accelerate the maturity, or terminate any commitment to further extend credit, no payment shall be made on any Junior Indebtedness if either: (i) notice of such default in writing or by telegram has been given to the Company by any holder of any Senior Indebtedness of the Company, provided that judicial proceedings shall be commenced with respect to such default (x) within 180 days thereafter if such default consists of the nonpayment of principal, interest, or any other sum due on such Senior Indebtedness, or (y) within 180 days after the earlier of (i) the giving of such notice or or (ii) the date on which such holder is entitled to institute judicial proceedings, or (ii) judicial proceedings shall be pending in respect of such default. The holder of any portion of Senior Indebtedness of the Company shall not be entitled to give notice pursuant to this clause (c) more than once with respect to any default which was specified in such notice and which has continued without interruption since the date such notice was given, nor shall such holder be entitled to give a separate notice with respect to any default not so specified which (to the knowledge of the holder giving notice) was existing on the date such notice was given pursuant to this clause (c) and which has continued without interruption from the date such notice was given. Upon receipt of any notice from any holder of any Senior Indebtedness pursuant to this clause (c), the Company shall forthwith send a copy thereof to each holder of Junior Indebtedness and each holder of its Senior Indebtedness at the time outstanding. (d) All payments, cash, or noncash distributions made to the holders of Junior Indebtedness which should have been made to the holders of Senior Indebtedness of the Company shall be received and held by the former in trust for the benefit of the latter, and the holders of Junior Indebtedness shall forthwith remit such payments, cash, or noncash distributions to the holders of the Senior Indebtedness of the Company, pro rata, in the form in which it was received, together with such endorsements or documents as may be necessary to effectively negotiate or transfer the same to the holders of the Senior Indebtedness of the Company. (e) Each holder of Senior Indebtedness of the Company is hereby authorized by the Purchaser to: (i) renew, compromise, extend, accelerate or otherwise change the time of payment, or any other terms, of any Senior Indebtedness of the Company held by such holder; (ii) increase or decrease the rate of interest payable thereon or any part thereof; (iii) exchange, enforce, waive or release any security therefor; (iv) apply such security and direct the order or manner of sale thereof in such manner as such holder may at its discretion determine; and/or (v) release the Company or any guarantor of any Senior Indebtedness of the Company from liability. If any such action is taken, the Company shall promptly notify the Purchaser and any holder of Junior Indebtedness. Notwithstanding anything set forth in this Section 11.1, nothing set forth herein shall restrict holders of the Notes and Preferred Stock from exercising their rights of conversion hereunder.

Subordination of Notes to Senior Indebtedness. The Indebtedness evidenced by the Notes and all renewals and extensions thereof, all obligations of the Company under this AgreementAgreement (other than the obligations of the Company under Sections 13.10 and 13.11), the Certificate of Designation, Notes and all other instruments and agreements arising out of or relating to any or all of the foregoing and all renewals and extensions thereof (collectively called collectively, the "Junior IndebtednessJUNIOR INDEBTEDNESS") shall at all times be wholly subordinate and junior in right of payment to any and all Senior Indebtedness of the Company (including any claims by the holders of such Senior Indebtedness for interest accruing after any assignment for the benefit of creditors by the Company or the institution by or against the Company of any proceedings under the Bankruptcy Code or any law for the relief of or relating to debtors, or any other claim by such holders for any such interest which would have accrued in the absence of such assignment or the institution of such proceedings) in the manner and with the force and effect hereafter set forth: (a) In the event of any liquidation, dissolution or winding up of the Company, or of any execution, sale, receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization or other similar proceeding relative to the Company or its property, all sums owing on all Senior Indebtedness of the Company (including cash collateral and amounts not yet due and payable) shall first be paid in full in cash, or provision shall be made for such payment in money or money's worth, before any payment is made upon the Junior Indebtedness; and if in any such event any payment or distribution of any kind or characterdistribution, whether in cash, property, or securities which shall be made upon or in respect of the Junior Indebtedness at a time when such payment is prohibited under this Section 11, the same shall be paid over to the holders of the Senior Indebtedness of the Company, pro rata, for application in payment thereof unless and until such Senior Indebtedness shall have been paid or satisfied in fullfull in cash, or provision shall be made for such payment in money or money's worth. In case of any assignment for the benefit of creditors by the Company or in case any proceedings under the Bankruptcy Code or any other law for the relief of or relating to debtors are instituted by or against the Company, or in case of the appointment of any receiver for the Company's business or assets, or in case of any dissolution or winding up of the affairs of the Company, the Company and any assignee, trustee in bankruptcy, receiver, debtor in possession or other person or persons in charge are hereby directed to pay to the holders of the Senior Indebtedness of the Company the full amount of such holders' claims against the Company (including interest to the date of payment) in cash, or provision shall be made for such payment in money or money's worth, before making any payments to the holders of Junior Indebtedness, and insofar as may be necessary for that purpose, each holder of the Purchaser Notes hereby assign assigns and transfer transfers to the holders of Senior Indebtedness of the Company all rights to any payments, dividends or other distributions. (b) In the event that all or any part of the Junior Indebtedness is declared or becomes due and payable because of the occurrence of any Event of Default or otherwise than at the option of the Company (other than pursuant to its terms at its final maturitymaturity or upon a Change in Control), under circumstances when the foregoing clause (a) shall not be applicable, the holders of the Junior Indebtedness shall be entitled to payments only after there shall first have been paid in full in cash, or provision shall be made for such payment in money or money's worth, all Senior Indebtedness of the Company or payment shall have been provided therefor in a manner satisfactory to the holders of such Senior Indebtedness. (c) Upon For purposes of this Section 11 only, the occurrence words "cash, property or securities" shall (so long as the effect of an this paragraph is not to cause the Note to be treated in any case or proceeding or other event which is, or with described in this Section as part of the lapse same class of time or notice or both would be, an event which gives any holder of claims as any Senior Indebtedness or any class of claims on a parity with or senior to any Senior Indebtedness for any payment or distribution) not be deemed to include shares of stock of the Company the right to demand payment, cash collateral, accelerate the maturityas reorganized or readjusted, or terminate securities of the Company or any commitment other corporation provided for by a plan of reorganization or readjustment which are subordinated in right of payment to further extend creditall Senior Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Notes are so subordinated as provided in this Section 11. The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale or transfer of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in this Agreement shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshaling of assets and liabilities of the Company for the purposes of this Section if the Person formed by such consolidation or into which the Company is merged or which acquires by sale or transfer such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, sale or transfer, comply with the conditions set forth in this Agreement. In the event and during the continuance of any event of default with respect to any Senior Indebtedness pursuant to which the maturity thereof may be accelerated, upon receipt by the Company and the holders of the Notes of written notice of such event of default from the holders of such Senior Indebtedness, then, unless and until such event of default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of, premium, if any, or interest on the Junior Indebtedness, or in respect of any retirement, purchase or other acquisition by the Company of any of the Junior Indebtedness if either: Indebtedness, for a period (ia "BLOCKAGE PERIOD") notice commencing as of the earlier of the date of receipt of such default in writing or notice or, if applicable, the date of such acceleration of the Senior Indebtedness, and ending 120 days thereafter (unless such Blockage Period shall be terminated by telegram has been given written notice to the Company by any holder holders of any the Notes from such holders of Senior Indebtedness of commencing the Company, provided that judicial proceedings shall Blockage Period). Not more than one Blockage Period may be commenced with respect to such default (x) within 180 days thereafter if such default consists the Junior Indebtedness during any period of the nonpayment 360 consecutive days. For all purposes of principal, interest, or any other sum due on such Senior Indebtedness, or (y) within 180 days after the earlier of (i) the giving of such notice or (ii) the date on which such holder is entitled to institute judicial proceedings, or (ii) judicial proceedings shall be pending in respect of such default. The holder of any portion of Senior Indebtedness of the Company shall not be entitled to give notice pursuant to this clause (c) more than once with respect to any default which was specified in such notice and which has continued without interruption since the date such notice was given, nor shall such holder be entitled to give a separate notice with respect to any default not so specified which (to the knowledge of the holder giving notice) was existing on the date such notice was given pursuant to this clause (c) and which has continued without interruption from the date such notice was given. Upon receipt of any notice from any holder of any Senior Indebtedness pursuant to this clause paragraph (c), no event of default which existed or was continuing on the Company date of the commencement of any Blockage Period shall forthwith send be, or be made, the basis for the commencement of a copy thereof to each holder second Blockage Period by the holders of Junior Indebtedness and each holder of its such Senior Indebtedness at the time outstandingwhether or not within a period of 360 consecutive days unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days. (d) All payments, cash, or noncash distributions made to the holders of Junior Indebtedness which should have been made to the holders of Senior Indebtedness of the Company shall be received and held by the former in trust for the benefit of the latter, and the holders of Junior Indebtedness shall forthwith remit such payments, cash, or noncash distributions to the holders of the Senior Indebtedness of the Company, pro rata, in the form in which it was received, together with such endorsements or documents as may be necessary to effectively negotiate or transfer the same to the holders of the Senior Indebtedness of the Company. (e) Each Without in any way waiving the rights of the holders of any Junior Indebtedness under Section 7.1, each holder of Senior Indebtedness of the Company is hereby authorized by the Purchaser holders of Junior Indebtedness to: (i) renew, compromise, extend, accelerate or otherwise change the time of payment, or any other terms, of any Senior Indebtedness of the Company held by such holder; (ii) increase or decrease the rate of interest payable thereon or any part thereof; (iii) exchange, enforce, waive or release any security therefor; (iv) apply such security and direct the order or manner of sale thereof in such manner as such holder may at its discretion determine; and/or (v) release the Company or any guarantor of any Senior Indebtedness of the Company from liability. If any such action is taken, the Company shall promptly notify the Purchaser and ; all without notice to any holder of Junior IndebtednessIndebtedness and without affecting the subordination provided by this Agreement. Notwithstanding anything set forth in this Section 11.1, nothing set forth herein shall restrict holders of the Notes and Preferred Stock from exercising their rights of conversion hereunder.

Subordination of Notes to Senior Indebtedness. The Indebtedness evidenced by the Notes and all renewals and extensions thereof, all obligations of the Company under this Agreement, the Certificate of Designation, and all other instruments and agreements arising out of or relating to any or all of the foregoing and all renewals and extensions thereof (collectively called the "Junior Indebtedness") shall at all times be wholly subordinate and junior in right of payment to any and all Senior Indebtedness of the Company (including any claims by the holders of such Senior Indebtedness for interest accruing after any assignment for the benefit of creditors by the Company or the institution by or against the Company of any proceedings under the Bankruptcy Code or any law for the relief of or relating to debtors, or any other claim by such holders for any such interest which would have accrued in the absence of such assignment or the institution of such proceedings) in the manner and with the force and effect hereafter set forth: (a) In the event of any liquidation, dissolution or winding up of the Company, or of any execution, sale, receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization or other similar proceeding relative to the Company or its property, all sums owing on all Senior Indebtedness of the Company (including cash collateral and amounts not yet due and payable) shall first be paid in full before any payment is made upon the Junior Indebtedness; and in any such event any payment or distribution of any kind or character, whether in cash, property, or securities which shall be made upon or in respect of the Junior Indebtedness shall be paid over to the holders of the Senior Indebtedness of the Company, pro rata, for application in payment thereof unless and until such Senior Indebtedness shall have been paid or satisfied in full. In case of any assignment for the benefit of creditors by the Company or in case any proceedings under the Bankruptcy Code or any other law for the relief of or relating to debtors are instituted by or against the Company, or in case of the appointment of any receiver for the Company's business or assets, or in case of any dissolution or winding up of the affairs of the Company, the Company and any assignee, trustee in bankruptcy, receiver, debtor in possession or other person or persons in charge are hereby directed to pay to the holders of the Senior Indebtedness of the Company the full amount of such holders' claims against the Company (including interest to the date of payment) before making any payments to the holders of Junior Indebtedness, and insofar as may be necessary for that purpose, the each Purchaser hereby assign assigns and transfer transfers to the holders of Senior Indebtedness of the Company all rights to any payments, dividends or other distributions. Each Purchaser agrees not to file or join in any petition to commence any proceeding under the Bankruptcy Code (or other law for the relief of or relating to debtors) so long as any Senior Indebtedness of the Company is outstanding. (b) In the event that all or any part of the Junior Indebtedness is declared or becomes due and payable because of the occurrence of any Event of Default or otherwise than at the option of the Company (other than pursuant to its terms at its final maturity), under circumstances when the foregoing clause (a) shall not be applicable, the holders of the Junior Indebtedness shall be entitled to payments only after there shall first have been paid in full all Senior Indebtedness of the Company or payment shall have been provided therefor in a manner satisfactory to the holders of such Senior Indebtedness. (c) Upon the occurrence of an event which is, or with the lapse of time or notice or both would be, an event which gives any holder of any Senior Indebtedness of the Company the right to demand payment, cash collateral, accelerate the maturity, or terminate any commitment to further extend credit, no payment shall be made on any Junior Indebtedness if either: : (i) notice of such default in writing or by telegram has been given to the Company by any holder of any Senior Indebtedness of the Company, provided that judicial proceedings shall be commenced with respect to such default (x) within 180 days thereafter if such default consists of the nonpayment of principal, interest, or any other sum due on such Senior Indebtedness, or (y) within 180 days after the earlier of (i) the giving of such notice or (ii) the date on which such holder is entitled to institute judicial proceedings, or or (ii) judicial proceedings shall be pending in respect of such default. The holder of any portion of Senior Indebtedness of the Company shall not be entitled to give notice pursuant to this clause (c) more than once with respect to any default which was specified in such notice and which has continued without interruption since the date such notice was given, nor shall such holder be entitled to give a separate notice with respect to any default not so specified which (to the knowledge of the holder giving notice) was existing on the date such notice was given pursuant to this clause (c) and which has continued without interruption from the date such notice was given. Upon receipt of any notice from any holder of any Senior Indebtedness pursuant to this clause (c), the Company shall forthwith send a copy thereof to each holder of Junior Indebtedness and each holder of its Senior Indebtedness at the time outstanding. (d) All payments, cash, or noncash distributions made to the holders of Junior Indebtedness which should have been made to the holders of Senior Indebtedness of the Company shall be received and held by the former in trust for the benefit of the latter, and the holders of Junior Indebtedness shall forthwith remit such payments, cash, or noncash distributions to the holders of the Senior Indebtedness of the Company, pro rata, in the form in which it was received, together with such endorsements or documents as may be necessary to effectively negotiate or transfer the same to the holders of the Senior Indebtedness of the Company. (e) Each holder of Senior Indebtedness of the Company is hereby authorized by the each Purchaser to: : (i) renew, compromise, extend, accelerate or otherwise change the time of payment, or any other terms, of any Senior Indebtedness of the Company held by such holder; ; (ii) increase or decrease the rate of interest payable thereon or any part thereof; ; (iii) exchange, enforce, waive or release any security therefor; ; (iv) apply such security and direct the order or manner of sale thereof in such manner as such holder may at its discretion determine; and/or and/or (v) release the Company or any guarantor of any Senior Indebtedness of the Company from liability. If any ; all without notice to such action is taken, the Company shall promptly notify the Purchaser and any holder of Junior Indebtedness. Notwithstanding anything set forth in Indebtedness and without affecting the subordination provided by this Section 11.1, nothing set forth herein shall restrict holders of the Notes and Preferred Stock from exercising their rights of conversion hereunderAgreement.

Subordination of Notes to Senior Indebtedness. The Indebtedness --------------------------------------------- evidenced by the Notes and all renewals and extensions thereof, all obligations of the Company under this Agreement, the Certificate of Designation, and all other instruments and agreements arising out of or relating to any or all of the foregoing and all renewals and extensions thereof (collectively called the "Junior Indebtedness") shall at all times be wholly subordinate and junior in right of payment to any and all Senior Indebtedness of the Company (including any claims by the holders of such Senior Indebtedness for interest accruing after any assignment for the benefit of creditors by the Company or the institution by or against the Company of any proceedings under the Bankruptcy Code or any law for the relief of or relating to debtors, or any other claim by such holders for any such interest which would have accrued in the absence of such assignment or the institution of such proceedings) in the manner and with the force and effect hereafter set forth: (a) In the event of any liquidation, dissolution or winding up of the Company, or of any execution, sale, receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization reorgani zation or other similar proceeding relative to the Company or its property, all sums owing on all Senior Indebtedness of the Company (including cash collateral and amounts not yet due and payable) shall first be paid in full before any payment is made upon the Junior Indebtedness; and in any such event any payment or distribution of any kind or character, whether in cash, property, or securities which shall be made upon or in respect of the Junior Indebtedness shall be paid over to the holders of the Senior Indebtedness of the Company, pro rata, for application in payment thereof unless and until such Senior Indebtedness shall have been paid or satisfied in full. In case of any assignment for the benefit of creditors by the Company or in case any proceedings under the Bankruptcy Code or any other law for the relief of or relating to debtors are instituted by or against the Company, or in case of the appointment of any receiver for the Company's business or assets, or in case of any dissolution or winding up of the affairs of the Company, the Company and any assignee, trustee in bankruptcy, receiver, debtor in possession or other person or persons in charge are hereby directed to pay to the holders of the Senior Indebtedness of the Company the full amount of such holders' claims against the Company (including interest to the date of payment) before making any payments to the holders of Junior Indebtedness, and insofar as may be necessary for that purpose, the Purchaser hereby assign and transfer to the holders of Senior Indebtedness of the Company all rights to any payments, dividends or other distributions. (b) In the event that all or any part of the Junior Indebtedness is declared or becomes due and payable because of the occurrence of any Event of Default or otherwise than at the option of the Company (other than pursuant to its terms at its final maturity), under circumstances when the foregoing clause (a) shall not be applicable, the holders of the Junior Indebtedness shall be entitled to payments only after there shall first have been paid in full all Senior Indebtedness of the Company or payment shall have been provided therefor in a manner satisfactory to the holders of such Senior Indebtedness. (c) Upon the occurrence of an event which is, or with the lapse of time or notice or both would be, an event which gives any holder of any Senior Indebtedness of the Company the right to demand payment, cash collateral, accelerate the maturity, or terminate any commitment to further extend credit, no payment shall be made on any Junior Indebtedness if either: (i) notice of such default in writing or by telegram has been given to the Company by any holder of any Senior Indebtedness of the Company, provided that judicial proceedings shall be commenced with respect to such default (x) within 180 one hundred eighty (180) days thereafter if such default consists of the nonpayment of principal, interest, or any other sum due on such Senior Indebtedness, or (y) within 180 one hundred eighty (180) days after the earlier of (iA) the giving of such notice or (iiB) the date on which such holder is entitled to institute judicial proceedings, or (ii) judicial proceedings shall be pending in respect of such default. The holder of any portion of Senior Indebtedness of the Company shall not be entitled to give notice pursuant to this clause (c) more than once with respect to any default which was specified in such notice and which has continued without interruption since the date such notice was given, nor shall such holder be entitled to give a separate notice with respect to any default not so specified which (to the knowledge of the holder giving notice) was existing on the date such notice was given pursuant to this clause (c) and which has continued con tinued without interruption from the date such notice was given. Upon receipt of any notice from any holder of any Senior Indebtedness pursuant to this clause (c), the Company shall forthwith send a copy thereof to each holder of Junior Indebtedness and each holder of its Senior Indebtedness at the time outstanding. (d) All payments, cash, or noncash distributions made to the holders of Junior Indebtedness which should have been made to the holders of Senior Indebtedness of the Company shall be received and held by the former in trust for the benefit of the latter, and the holders of Junior Indebtedness shall forthwith remit such payments, cash, or noncash distributions to the holders of the Senior Indebtedness of the Company, pro rata, in the form in which it was received, together with such endorsements or documents as may be necessary neces sary to effectively negotiate or transfer the same to the holders of the Senior Indebtedness of the Company. (e) Each holder of Senior Indebtedness of the Company is hereby authorized by the Purchaser to: (i) renew, compromise, extend, accelerate or otherwise change the time of payment, or any other terms, of any Senior Indebtedness of the Company held by such holder; (ii) increase or decrease the rate of interest payable thereon or any part thereof; (iii) exchange, enforce, waive or release any security therefor; (iv) apply such security and direct the order or manner of sale thereof in such manner as such holder may at its discretion determine; and/or (v) release the Company or any guarantor of any Senior Indebtedness of the Company from liability. If any such action is taken, the Company shall promptly notify the Purchaser and any holder of Junior Indebtedness. Notwithstanding anything set forth in this Section 11.19.1, nothing set forth herein shall restrict holders of the Notes and Preferred Stock from exercising their rights of conversion hereunder.