Common use of Notes Subordinate to Senior Debt Clause in Contracts

Notes Subordinate to Senior Debt. The Company covenants and agrees, and each holder of a Note, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth, the payment of the principal of and any premium and interest on each and all of the Notes are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Debt. “Senior Debt” means the principal of and any premium and interest on (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not such claim for post-petition interest is allowed in such proceeding) all Indebtedness of the Company, incurred on or after the date of this Agreement and permitted to be incurred hereunder, unless it is provided in the instrument creating or evidencing the same or pursuant to which the same is outstanding that the obligations under such instrument are not superior in right of payment to the Notes issued under this Agreement; provided, however, that the amount of such Senior Debt shall in no event exceed $10,000,000; provided, further, that Senior Debt shall not include: (a) any obligation of the Company to any Subsidiary or any obligation of a Subsidiary to the Company or another Subsidiary; (b) any liability for Federal, state, foreign, local or other taxes owed or owing by the Company or any of its Subsidiaries; (c) any accounts payable or other liability to trade creditors arising in the ordinary course of business (including guarantees thereof or instruments evidencing such liabilities); (d) Indebtedness to, or guaranteed on behalf of, any director, officer or employee of the Company or any of its Subsidiaries (including amounts owed for compensation); (e) any capital stock or redeemable stock of the Company or its Subsidiaries; (f) any Indebtedness that is expressly subordinate or junior in right of payment to the Notes; or (g) any Indebtedness incurred in violation of this Agreement. Only Indebtedness of the Company that is Senior Debt shall rank senior to the Notes. Each holder of a Note agrees, if requested by the Senior Lender to execute a Subordination Agreement for the benefit of the Senior Lender consistent with the provisions of this Section 17.1.

Notes Subordinate to Senior Debt. The Company covenants and agrees, and each holder of a Note, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth, the payment of the principal of and any premium and interest on each and all of the Notes are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Debt. “Senior Debt” means (i) the Indebtedness under the Senior Loan Agreement and any amendment, restatement or refinancing thereof, (ii) the Senior Notes and (iii) the principal of and any premium and interest on (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not such claim for post-petition interest is allowed in such proceeding) all Indebtedness of the Company, incurred on or after the date of this Agreement and permitted to be incurred hereunder, unless it is provided in the instrument creating or evidencing the same or pursuant to which the same is outstanding that the obligations under such instrument are not superior in right of payment to the Notes issued under this Agreement; provided, however, that the aggregate amount of such all Senior Debt under clauses (i), (ii) and (iii) above shall in no event exceed $10,000,00042,000,000; provided, further, that Senior Debt shall not include: (a) any obligation of the Company to any Subsidiary or any obligation of a Subsidiary to the Company or another Subsidiary; (b) any liability for Federal, state, foreign, local or other taxes owed or owing by the Company or any of its Subsidiaries; (c) any accounts payable or other liability to trade creditors arising in the ordinary course of business (including guarantees thereof or instruments evidencing such liabilities); (d) Indebtedness to, or guaranteed on behalf of, any director, officer or employee of the Company or any of its Subsidiaries (including amounts owed for compensation); (e) any capital stock or redeemable stock of the Company or its Subsidiaries; (f) any Indebtedness that is expressly subordinate or junior in right of payment to the Notes; or (g) any Indebtedness incurred in violation of this Agreement. Only Indebtedness of the Company that is Senior Debt shall rank senior to the Notes. Each holder of a Note agrees, if requested by the Senior Lender to execute a Subordination Agreement for the benefit of the Senior Lender consistent with the provisions of this Section 17.1.. 27

Notes Subordinate to Senior Debt. The Company covenants and agrees, and each holder of a Note, by its acceptance thereof, likewise covenants and agrees, that, agrees that anything herein or the Notes to the extent and in the manner hereinafter set forthcontrary notwithstanding, the payment of the principal of and any premium and interest on each and all of indebtedness evidenced by the Notes are hereby expressly made is subordinate and subject junior in right of payment to all Senior Debt to the prior extent provided herein, and each Holder of Notes, by such Holder’s acceptance of such Notes, likewise covenants and agrees to the subordination provided for in this Article 4 and shall be bound by the provisions herein. Senior Debt shall continue to be Senior Debt and entitled to the benefits of these subordination provisions irrespective of any amendment, modification, or waiver of any term of the Senior Debt or extension or renewal of the Senior Debt. In the event of: (a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment of debt, composition, or other similar proceeding relating to the Company or its property, (b) any proceeding for the liquidation, dissolution, or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy proceedings, (c) any assignment by the Company for the benefit of creditors, or (d) any other marshalling of the assets of the Company, all obligations with respect to all Senior Debt shall first be paid in full before any payment or distribution, whether in cash, securities, or other property, shall be made to any Holder of the Notes on account of the principal or interest on the Notes. Only after payment in full of all amounts owing with respect to Senior Debt shall the Holders of the Notes, together with holders of any obligations of the Company Ranking on a Parity with the Notes, be entitled to be paid from any remaining assets of the Company on account of the principal of, or unpaid interest on, the Notes. Any payment or distribution, whether in cash, securities, or other property (other than securities of the Company or any other Person provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Debt at the time outstanding and to any securities issued in respect of such Senior Debt under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Notes shall be paid or delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders until all Senior Debt (including any interest on such Senior Debt accruing after the commencement of any such proceedings) shall have been paid in full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Debt, the Holders of the Notes, together with the holders of any obligations of the Company ranking on a parity 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 (and premium, if any) and interest 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. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities, or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Debt at the time outstanding and to any securities issued in respect of such Senior Debt under any such plan of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms herein, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for applications to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full. In the event of the failure of the Trustee or any Holder of the Notes to endorse or assign any such payment, distribution, or security, each holder of Senior Debt is irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Debt 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. Nothing contained herein shall impair, as between the Company and the Holders of the Notes, the obligation of the Company to pay to such Holders the principal of, (and premium, if any), and interest on, such Notes or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or under the Base Indenture or this First Supplemental Indenture upon a default or Event of Default, all subject to the rights of the holders of the Senior Debt to receive cash, securities, or other property otherwise payable or deliverable to the Holders. Senior Debt shall not be deemed to have been paid in full unless the holders shall have received cash, securities, or other property equal to the amount of such Senior Debt then outstanding. Upon the payment in full of all Senior Debt. “, the Holders of the Notes shall be subrogated to all rights of any holders of Senior Debt to receive any further payments or distributions applicable to the Senior Debt until the indebtedness evidenced by the Notes shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities, or other property which otherwise would be paid or distributed to the holders of Senior Debt shall, as between the Company and its creditors other than the holders of Senior Debt” means , on the principal one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Debt, and any premium not on account of the Notes. The Trustee and interest on Holders will take such action (including interest accruing on including, without limitation, the delivery of this First Supplemental Indenture to an agent for the holders of Senior Debt or after consent to the filing of any petition in bankruptcy or for reorganization relating a financing statement with respect to the Companythis First Supplemental Indenture) as may, whether or not such claim for post-petition interest is allowed in such proceeding) all Indebtedness of the Company, incurred on or after the date of this Agreement and permitted to be incurred hereunder, unless it is provided in the instrument creating or evidencing opinion of counsel designated by the same or pursuant to which the same is outstanding that the obligations under such instrument are not superior in right of payment to the Notes issued under this Agreement; provided, however, that the amount of such Senior Debt shall in no event exceed $10,000,000; provided, further, that Senior Debt shall not include: (a) any obligation of the Company to any Subsidiary or any obligation holders of a Subsidiary to the Company or another Subsidiary; (b) any liability for Federal, state, foreign, local or other taxes owed or owing by the Company or any of its Subsidiaries; (c) any accounts payable or other liability to trade creditors arising majority in the ordinary course of business (including guarantees thereof or instruments evidencing such liabilities); (d) Indebtedness to, or guaranteed on behalf of, any director, officer or employee of the Company or any of its Subsidiaries (including amounts owed for compensation); (e) any capital stock or redeemable stock of the Company or its Subsidiaries; (f) any Indebtedness that is expressly subordinate or junior in right of payment to the Notes; or (g) any Indebtedness incurred in violation of this Agreement. Only Indebtedness of the Company that is Senior Debt shall rank senior to the Notes. Each holder of a Note agrees, if requested by the Senior Lender to execute a Subordination Agreement for the benefit principal amount of the Senior Lender consistent with Debt at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions. The provisions of this Section 17.14.01 shall not impair any rights, interests, remedies, or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions herein.

Notes Subordinate to Senior Debt. The Company covenants and agrees, and each holder of a Note, by its acceptance thereof, likewise covenants and agrees, that, agrees that anything herein or the Notes to the extent and in the manner hereinafter set forthcontrary notwithstanding, the payment of the principal of and any premium and interest on each and all of indebtedness evidenced by the Notes are hereby expressly made is subordinate and subject junior in right of payment to all Senior Debt to the prior extent provided herein, and each Holder of Notes, by such Holder’s acceptance of such Notes, likewise covenants and agrees to the subordination provided for in this Article 4 and shall be bound by the provisions herein. Senior Debt shall continue to be Senior Debt and entitled to the benefits of these subordination provisions irrespective of any amendment, modification, or waiver of any term of the Senior Debt or extension or renewal of the Senior Debt. In the event of: (a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment of debt, composition, or other similar proceeding relating to the Company or its property, (b) any proceeding for the liquidation, dissolution, or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy proceedings, (c) any assignment by the Company for the benefit of creditors, or (d) any other marshalling of the assets of the Company, all Senior Debt (including any interest on such Senior Debt accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities, or other property, shall be made to any Holder of the Notes on account of the principal or interest on such Notes. Any payment or distribution, whether in cash, securities, or other property (other than securities of the Company or any other Person provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Debt at the time outstanding and to any securities issued in respect of such Senior Debt under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Notes shall be paid or delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders until all Senior Debt (including any interest on such Senior Debt accruing after the commencement of any such proceedings) shall have been paid in full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Debt, the Holders of the Notes, together with the holders of any obligations of the Company ranking on a parity 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 (and premium, if any) and interest 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. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities, or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Debt at the time outstanding and to any securities issued in respect of such Senior Debt under any such plan of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms herein such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for applications to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full. In the event of the failure of the Trustee or any Holder of the Notes to endorse or assign any such payment, distribution, or security, each holder of Senior Debt is irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Debt 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. Nothing contained herein shall impair, as between the Company and the Holders of the Notes, the obligation of the Company to pay to such Holders the principal of (and premium, if any) and interest on such Notes or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or under this First Supplemental Indenture upon a default or Event of Default, all subject to the rights of the holders of the Senior Debt to receive cash, securities, or other property otherwise payable or deliverable to the Holders. Senior Debt shall not be deemed to have been paid in full unless the holders shall have received cash, securities, or other property equal to the amount of such Senior Debt then outstanding. Upon the payment in full of all Senior Debt. “, the Holders of the Notes shall be subrogated to all rights of any holders of Senior Debt to receive any further payments or distributions applicable to the Senior Debt until the indebtedness evidenced by the Notes shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities, or other property which otherwise would be paid or distributed to the holders of Senior Debt shall, as between the Company and its creditors other than the holders of Senior Debt” means , on the principal one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior Debt, and any premium not on account of the Notes. The Trustee and interest on Holders will take such action (including interest accruing on including, without limitation, the delivery of this First Supplemental Indenture to an agent for the holders of Senior Debt or after consent to the filing of any petition in bankruptcy or for reorganization relating a financing statement with respect to the Companythis First Supplemental Indenture) as may, whether or not such claim for post-petition interest is allowed in such proceeding) all Indebtedness of the Company, incurred on or after the date of this Agreement and permitted to be incurred hereunder, unless it is provided in the instrument creating or evidencing opinion of counsel designated by the same or pursuant to which the same is outstanding that the obligations under such instrument are not superior in right of payment to the Notes issued under this Agreement; provided, however, that the amount of such Senior Debt shall in no event exceed $10,000,000; provided, further, that Senior Debt shall not include: (a) any obligation of the Company to any Subsidiary or any obligation holders of a Subsidiary to the Company or another Subsidiary; (b) any liability for Federal, state, foreign, local or other taxes owed or owing by the Company or any of its Subsidiaries; (c) any accounts payable or other liability to trade creditors arising majority in the ordinary course of business (including guarantees thereof or instruments evidencing such liabilities); (d) Indebtedness to, or guaranteed on behalf of, any director, officer or employee of the Company or any of its Subsidiaries (including amounts owed for compensation); (e) any capital stock or redeemable stock of the Company or its Subsidiaries; (f) any Indebtedness that is expressly subordinate or junior in right of payment to the Notes; or (g) any Indebtedness incurred in violation of this Agreement. Only Indebtedness of the Company that is Senior Debt shall rank senior to the Notes. Each holder of a Note agrees, if requested by the Senior Lender to execute a Subordination Agreement for the benefit principal amount of the Senior Lender consistent with Debt at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions. The provisions of this Section 17.14.01 shall not impair any rights, interests, remedies, or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions herein.