Common use of Subordination and Priority Clause in Contracts

Subordination and Priority. Subordinated Lender hereby subordinates and makes junior the Subordinated Loan, the Subordinated Loan Documents (and any amendment, modification or extension thereof, and any future advance or increase respecting the Subordinated Loan, in each instance, whether or not made in violation of this Agreement), and the lien and security interests created thereby and all of the foregoing (collectively, the “Subordinated Interests”) shall at all times be junior, subject and subordinate to the lien and security interest created by the Loan Documents and all of the terms, covenants, conditions, rights and remedies contained in the Loan Documents, and no amendments or modifications of the Loan Documents or waivers of any provisions thereof shall affect the subordination of the Subordinated Interests as set forth in this Section 3, it being understood and agreed that the Loan Documents and the liens and security interests created thereby shall be and remain a prior lien against the Project. In addition, all of Subordinated Lender’s rights to payment of the Subordinated Loan and the obligations evidenced by the Subordinated Loan Documents are hereby subordinated to all of Lender’s rights to payment by Borrower of the Loan and the obligations secured by the Loan Documents, and Subordinated Lender shall not accept or receive payments (including, without limitation, whether in cash or other property and whether received directly, indirectly or by set-off, counterclaim or otherwise) from Borrower and/or from the Project upon the occurrence and during the continuance of an Event of Default (as defined in the Loan Documents) under the Loan. If a Proceeding shall have occurred, Lender shall be entitled to receive payment and performance in full of all amounts due or to become due to Lender before Subordinated Lender is entitled to receive any payment on account of the Subordinated Loan. All payments or distributions upon or with respect to the Subordinated Loan which are received by Subordinated Lender contrary to the provisions of this Agreement shall be received and held in trust by the Subordinated Lender for the benefit of Lender and shall be paid over to Lender in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the payment or performance of the Loan in accordance with the terms of the Loan Documents. Nothing contained herein shall prohibit the Subordinated Lender from making protective advances (and adding the amount thereof to the principal balance of the Subordinated Loan) notwithstanding the existence of a default under the Loan at such time.

Subordination and Priority. Subordinated Lender hereby subordinates The Issuer, for itself, its successors and makes junior the Subordinated Loanassigns, the Subordinated Loan Documents (covenants and any amendment, modification or extension thereofagrees, and any future advance or increase respecting each Holder likewise covenants and agrees by his acceptance hereof, that the Subordinated Loan, in each instance, whether or not made in violation of this Agreement), and the lien and security interests created thereby and all obligations of the foregoing (collectively, the “Subordinated Interests”) shall at all times be junior, subject and subordinate Issuer to the lien and security interest created by the Loan Documents and all of the terms, covenants, conditions, rights and remedies contained in the Loan Documents, and no amendments or modifications of the Loan Documents or waivers of any provisions thereof shall affect the subordination of the Subordinated Interests as set forth in this Section 3, it being understood and agreed that the Loan Documents and the liens and security interests created thereby shall be and remain a prior lien against the Project. In addition, all of Subordinated Lender’s rights to payment of the Subordinated Loan and the obligations evidenced by the Subordinated Loan Documents are hereby subordinated to all of Lender’s rights to payment by Borrower of the Loan and the obligations secured by the Loan Documents, and Subordinated Lender shall not accept or receive payments (including, without limitation, whether in cash or other property and whether received directly, indirectly or by set-off, counterclaim or otherwise) from Borrower and/or from the Project upon the occurrence and during the continuance of an Event of Default (as defined in the Loan Documents) under the Loan. If a Proceeding shall have occurred, Lender shall be entitled to receive payment and performance in full of all amounts due or to become due to Lender before Subordinated Lender is entitled to receive make any payment on account of the Subordinated Loanprincipal of and interest on this Note shall be subordinate and junior, to the extent and in the manner hereinafter set forth, in right of payment and upon liquidation to the Issuer’s obligations to the holders of Senior Debt of the Issuer. All No payment on account of principal or interest on this Note shall be made by the Issuer unless full payment of amounts then due for principal (and premium, if any), sinking funds, and interest on all Senior Debt of the Issuer has been made or duly provided for in money or money’s worth in accordance with its terms. No payment on account of principal or interest on this Note shall be made by the Issuer if, at the time of such payment or immediately after giving effect thereto, there shall have occurred an event of default with respect to any Senior Debt of the Issuer or on any instrument under which the same is outstanding, permitting the holders thereof (or a trustee on behalf of the holders thereof) to accelerate the maturity thereof, or an event that, with the giving of notice or the passage of time or both, would constitute such event of default, and such event of default shall not have been cured or waived. The Issuer agrees that upon (i) the occurrence of any event of default referred to in the preceding paragraph that shall not have been cured or waived or (ii) any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up or total or partial liquidation or reorganization of the Issuer, whether voluntary or involuntary or in bankruptcy, insolvency, receivership, conservatorship or other proceedings, all principal (and premium, if any), sinking fund payments and interest due or to become due upon all Senior Debt of the Issuer shall first be paid in full, or payment thereof provided for in money or money’s worth in accordance with its terms, before any payment is made on account of the principal of or interest on the indebtedness evidenced by this Note due and owing at the time and upon any such dissolution or winding up or liquidation or reorganization, any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities (other than securities of the Issuer 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 this Section 1 with respect to this Note, to the payment in full of all Senior Debt, provided the rights of the holders of the Senior Debt are not altered by such reorganization or readjustment), to which the Holder of this Note would, except for the provisions hereof, be entitled, shall be paid by the Issuer or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, or by the Holder under this Note if received by it, directly to the holders of Senior Debt of the Issuer (pro rata to each such holder on the basis of the respective amounts of Senior Debt held by such holder) or their representatives, to the extent necessary to pay all Senior Debt of the Issuer in full, in money or money’s worth, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Debt, before any payment or distribution is made to the Holder of the indebtedness evidenced by this Note under this instrument. In the event that any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, including any such payment or distribution that may be payable or deliverable by reason of the payment of any other indebtedness of the Issuer being subordinated to the payment of this Note, not permitted by the foregoing, shall be received by the Holder of this Note before all Senior Debt of the Issuer is paid in full, or provision is made for such payment, in accordance with its terms, such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Senior Debt of the Issuer (pro rata to each such holder on the basis of the respective amounts of Senior Debt held by such holder) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Debt of the Issuer may have been issued, as their respective interests may appear, or to any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such distribution, for application to the payment of all Senior Debt of the Issuer remaining unpaid to the extent necessary to pay all such Senior Debt of the Issuer in full in accordance with its terms, after giving effect to any concurrent payment or distribution to the holders of such Senior Debt of the Issuer. The consolidation of the Issuer with, or the merger of the Issuer into, another corporation or the liquidation or dissolution of the Issuer following the conveyance or transfer of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Section 4 hereof shall not be deemed a dissolution, winding up, liquidation or reorganization for the purposes of this Section 1 if the entity formed by such consolidation or into which the Issuer is merged or the Person that acquires by conveyance or transfer such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Section 4 hereof. Subject to the prior payment in full of all Senior Debt of the Issuer, the Holder of this Note shall he subrogated (equally and ratably with the holders of all indebtedness of the Issuer that by its express terms is subordinated to indebtedness of the Issuer to substantially the same extent as this Note is subordinated and is entitled to like rights of subrogation) to the rights of the holders of such Senior Debt to receive payments or distributions upon or with respect of cash, property and securities applicable to the Subordinated Loan Senior Debt of the Issuer until this Note shall be paid in full. For purposes of such subrogation, no payments or distributions in respect of the Senior Debt of the Issuer of any cash, property or securities to which are received by Subordinated Lender contrary the Holder of this Note would be entitled except for the provisions of this Section 1, and no payments over pursuant to the provisions of this Agreement Section 1 to the holders of Senior Debt by the Holder of this Note, shall, as between the Issuer, its creditors other than holders of Senior Debt of the Issuer and the Holder of this Note, be deemed to be a payment or distribution by the Issuer to or on account of the Senior Debt of the Issuer, and no payments or distributions to the Holder of this Note of cash, property or securities that are applied to the satisfaction of Senior Debt of the Issuer, as the case may be, by virtue of the subordination herein provided for shall, as between the Issuer, its creditors other than the holders of Senior Debt of the Issuer and the Holder of this Note, be deemed to be a payment by the Issuer to or on account of this Note. Upon any payment or distribution of assets of the Issuer referred to in this Section 1, the Holder of this Note shall be received and held entitled to rely upon an order or decree made by any court of competent jurisdiction in trust by which such dissolution or winding up or liquidation or reorganization or arrangement proceedings are pending or upon a certificate of the Subordinated Lender trustee in bankruptcy, receiver, conservator, assignee for the benefit of Lender and shall be paid over to Lender in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, creditors or held as collateral (in the case of non-cash property or securities) for, the payment or performance of the Loan in accordance with the terms of the Loan Documents. Nothing contained herein shall prohibit the Subordinated Lender from other person making protective advances (and adding the amount thereof to the principal balance of the Subordinated Loan) notwithstanding the existence of a default under the Loan at such time.payment

Subordination and Priority. (a) Notwithstanding the date, manner or order of attachment or perfection (if any) or the description of any collateral or security interests, liens, claims or encumbrances covered or granted by Section 2.01, each Subordinated Lender hereby subordinates Representative, by its execution of a Secured Party Supplement or this Agreement, agrees that the respective rights and makes junior interest of the Subordinated LoanSecured Claimants in the Collateral are and shall be subordinate, to the extent and in the manner set forth hereinafter and in Articles III and X of the Indenture, to all rights and interest of the Senior Secured Claimants in the Collateral, and that the Senior Secured Claimants shall have at all times interests prior and senior to that of the Subordinated Secured Claimants in all Collateral until the payment in full of all Senior Secured Claims owed to such Senior Secured Claimants. (b) For the purposes of this Agreement, no Senior Secured Claims shall be deemed to have been paid in full until and unless such Senior Secured Claims shall have been paid in full in cash to the applicable recipient in respect of such Senior Secured Claims. (c) Notwithstanding anything contained herein to the contrary, payments from any property (or the proceeds thereof) deposited in the Redemption/Defeasance Account or the Refinancing Account pursuant to Section 3.11 of the Indenture or Article XI of the Indenture shall not be subordinated to the prior payment of any Senior Secured Claimants in respect of any Senior Secured Claims or subject to any other restrictions set forth in this Article IX, and none of the Holders or, if applicable, Certificate Holders or other Persons (including any Subordinated Representative), shall be obligated to pay over any such payments from any such property to the Security Trustee or any other creditor of any of the Grantors. Section 9.06 Exercise of Remedies (a) Until the date on which all the Senior Secured Claims shall have been paid in full, the Subordinated Loan Documents (Senior Representative, in its sole discretion and any amendment, modification or extension thereof, and any future advance or increase respecting to the exclusion of the Subordinated LoanRepresentatives, in each instanceshall have, whether or not made any default under the Indenture shall have occurred and be continuing and both before and after the commencement of any proceeding referred to in violation of this AgreementSection 9.07(a), the sole and exclusive right (as between the Senior Representative, on the one hand, and the lien and security interests created thereby and Subordinated Representatives, on the other) to direct the Security Trustee to take all of the foregoing (collectively, the “Subordinated Interests”) shall at all times be junior, subject and subordinate to the lien and security interest created by the Loan Documents and all of the terms, covenants, conditions, rights and remedies contained in the Loan Documents, and no amendments or modifications of the Loan Documents or waivers of any provisions thereof shall affect the subordination of the Subordinated Interests as set forth in this Section 3, it being understood and agreed that the Loan Documents and the liens and security interests created thereby shall be and remain a prior lien against the Project. In addition, all of Subordinated Lender’s rights to payment of the Subordinated Loan and the obligations evidenced by the Subordinated Loan Documents are hereby subordinated to all of Lender’s rights to payment by Borrower of the Loan and the obligations secured by the Loan Documents, and Subordinated Lender shall not accept or receive payments (including, without limitation, whether in cash or other property and whether received directly, indirectly or by set-off, counterclaim or otherwise) from Borrower and/or from the Project upon the occurrence and during the continuance of an Event of Default (as defined in the Loan Documents) under the Loan. If a Proceeding shall have occurred, Lender shall be entitled to receive payment and performance in full of all amounts due or to become due to Lender before Subordinated Lender is entitled to receive any payment on account of the Subordinated Loan. All payments or distributions upon or action with respect to the Subordinated Loan which are received by Subordinated Lender contrary Collateral, including the right to the provisions of this Agreement shall be received and held exercise or direct voting or other consensual rights, to foreclose or forebear from foreclosure in trust by the Subordinated Lender for the benefit of Lender and shall be paid over to Lender in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the payment or performance respect of the Loan Collateral and to accept the Collateral in full or partial satisfaction of any Senior Secured Claim, all in accordance with the terms of this Agreement. The Subordinated Representatives agree 43 that, until the Loan Documents. Nothing contained herein shall prohibit Senior Secured Claims have been paid in full, the Subordinated Lender from making protective advances (and adding the amount thereof to the principal balance only right of the Subordinated LoanSecured Claimants under this Agreement is for the Subordinated Secured Claims to be secured by the Collateral for the period and to the extent provided for herein or in the Indenture and to receive a share of the proceeds of the Collateral, if any, subject to payment priorities set forth in Article III of the Indenture. (b) notwithstanding The Subordinated Representatives agree that, so long as any of the existence Senior Secured Claims shall remain unpaid, they and the Subordinated Secured Claimants will not commence, or join with any creditor other than the Security Trustee and the Senior Secured Claimants in commencing, any enforcement, collection, execution, levy or foreclosure proceeding with respect to the Collateral or proceeds of a default Collateral. Upon request by the Senior Representative, the Subordinated Representatives and the Subordinated Secured Claimants will, at the expense of the Issuer, join in enforcement, collection, execution, levy or foreclosure proceedings and otherwise cooperate fully in the maintenance of such proceedings by the Security Trustee, including by executing and delivering all such consents, pleadings, releases and other documents and instruments as the Security Trustee may reasonably request in connection therewith, it being understood that the conduct of such proceedings shall at all times be under the Loan at exclusive control of the Security Trustee acting upon the directions of the Senior Representative. (c) The Subordinated Representatives agree, upon written request by the Senior Representative, to release the liens and security interests in favor of the Subordinated Secured Claimants in any Collateral and to execute and deliver all such time.directions, consents, pleadings, releases and other documents and instruments as the Senior Representative may reasonably request in connection therewith, upon any sale, lease, transfer or other disposition of such Collateral or part thereof in accordance with, or for application of proceeds pursuant to, Section 9.05(a). (d) The Subordinated Representatives agree that neither they nor any Subordinated Secured Claimants will contest, or bring (or join in) any action or proceeding for the purpose of contesting, the validity, perfection or priority of, or seeking to avoid, the rights of the Senior Representative or the Senior Secured Claimants in or with respect to the Collateral. Section 9.07