Common use of Subordination of Claims Clause in Contracts

Subordination of Claims. The Issuer’s obligations under this Indenture are obligations solely of the Issuer and will not constitute a claim against the Seller to the extent that the Issuer does not have funds sufficient to make payment of such obligations. In furtherance of and not in derogation of the foregoing, each of the Owner Trustee (in its individual capacity and as the Owner Trustee), by accepting the benefits of this Indenture, the Certificateholder, by accepting the Certificate, and the Indenture Trustee and the Securities Intermediary, by entering into this Indenture, and each Noteholder and Note Owner, by accepting the benefits of this Indenture, hereby acknowledges and agrees that such Person has no right, title or interest in or to the Other Assets of the Seller. To the extent that, notwithstanding the agreements and provisions contained in the preceding sentence, each of the Owner Trustee, the Indenture Trustee, the Securities Intermediary, each Noteholder or Note Owner and the Certificateholder either (i) asserts an interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or from Other Assets, whether by operation of law, legal process, pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or any successor provision having similar effect under the Bankruptcy Code), then such Person further acknowledges and agrees that any such interest, claim or benefit in or from Other Assets is and will be expressly subordinated to the indefeasible payment in full, which, under the terms of the relevant documents relating to the securitization or conveyance of such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured by such Other Assets (whether or not any such entitlement or security interest is legally perfected or otherwise entitled to a priority of distributions or application under applicable law, including insolvency laws, and whether or not asserted against the Seller), including the payment of post-petition interest on such other obligations and liabilities. This subordination agreement will be deemed a subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each of the Indenture Trustee and the Securities Intermediary, by entering into or accepting this Indenture, the Certificateholder, by accepting the Certificate, and the Owner Trustee, and each Noteholder or Note Owner, by accepting the benefits of this Indenture, hereby further acknowledges and agrees that no adequate remedy at law exists for a breach of this Section 11.19 and the terms of this Section 11.19 may be enforced by an action for specific performance. The provisions of this Section 11.19 will be for the third party benefit of those entitled to rely thereon and will survive the termination of this Indenture.

Subordination of Claims. The Issuer’s obligations under this Indenture Upon the occurrence and continuance of (i) an Event of Default at a time when Principal Obligations are obligations solely outstanding or (ii) a mandatory prepayment having been triggered pursuant to Section 3.4(b) that is unpaid, no Borrower shall make any payments of any kind, directly or indirectly, on any debts and liabilities to any other Borrower, Investor, the Issuer Investment Adviser or the Administrator, whether now existing or hereafter arising and will not constitute a claim against whether direct, indirect, several, joint and several, or otherwise, and howsoever evidenced or created (collectively, the Seller “Other Claims”), but excluding payments permitted by Section 9.13 or to another Borrower to the extent that such payments are solely used to pay a defaulted payment or mandatory prepayment, in each case, of the Issuer does not have funds sufficient to make Obligations. All Other Claims, together with all Liens on assets securing the payment of such obligations. In furtherance the Other Claims shall at all times during the continuance of an Event of Default or during the existence of a mandatory prepayment having been triggered pursuant to Section 3.4(b) that is unpaid be subordinated to and not inferior in derogation right and in payment to the Obligations and all Liens on assets securing all or any portion of the foregoing, each Obligations of the Owner Trustee (in its individual capacity and as the Owner Trustee), by accepting the benefits of this Indenture, the Certificateholder, by accepting the Certificate, and the Indenture Trustee and the Securities Intermediary, by entering into this Indentureany Borrower, and each Noteholder Borrower, the Investment Adviser and Note Ownerthe Administrator each agrees to take such actions as are necessary to provide for such subordination between it and any other Borrower, by accepting the benefits Investment Adviser and/or the Administrator. Each of this Indenture, hereby the Investment Adviser and the Administrator acknowledges and agrees that such Person at any time an Event of Default has no right, title occurred and is continuing at a time when Principal Obligations are outstanding or interest in or to the Other Assets of the Seller. To the extent that, notwithstanding the agreements and provisions contained in the preceding sentence, each of the Owner Trustee, the Indenture Trustee, the Securities Intermediary, each Noteholder or Note Owner and the Certificateholder either (i) asserts an interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or from Other Assets, whether by operation of law, legal process, a mandatory prepayment has been triggered pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of Section 1111(b3.4(b) of the Bankruptcy Code or any successor provision having similar effect under the Bankruptcy Code)that is unpaid, then such Person further acknowledges and agrees that any such interest, claim or benefit in or from Other Assets is and will be expressly subordinated to the indefeasible payment in full, which, under the terms of the relevant documents relating to the securitization or conveyance of such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured by such Other Assets (whether or not any such entitlement or security interest is legally perfected or otherwise entitled to a priority of distributions or application under applicable law, including insolvency laws, and whether or not asserted against the Seller), including the payment of post-petition interest on such other obligations any Other Claims due and liabilities. This subordination agreement will owing to it from any Borrower shall be deemed a subordination agreement within subordinated to and inferior in right and payment to the meaning Obligations in all respects; provided that, so long as no Event of Default pursuant to Section 510(a10.1(a) of or Section 10.1(i) has occurred and is continuing, the Bankruptcy Code. Each of Borrowers shall be permitted to make payments to the Indenture Trustee Investment Advisor and the Securities IntermediaryAdministrator for management fees that represent fees for regular, by entering into ordinary course asset management activities and are not in the nature of performance fees, incentive fees or accepting this Indenture, the Certificateholder, by accepting the Certificate, and the Owner Trustee, and each Noteholder fees representing or Note Owner, by accepting the benefits of this Indenture, hereby further acknowledges and agrees that no adequate remedy at law exists for a breach of this Section 11.19 and the terms of this Section 11.19 may be enforced by constituting any carried interest in an action for specific performance. The provisions of this Section 11.19 will be for the third party benefit of those entitled to rely thereon and will survive the termination of this Indentureaggregate amount not exceeding $5,000,000 during any calendar year.

Subordination of Claims. The Issuer’s 's obligations under this Indenture are obligations solely of the Issuer and will not constitute a claim against the Seller to the extent that the Issuer does not have funds sufficient to make payment of such obligations. In furtherance of and not in derogation of the foregoing, each of the Owner Trustee (in its individual capacity and as the Owner Trustee), by accepting the benefits of this Indenture, the Certificateholder, by accepting the Certificate, and the Indenture Trustee (in its individual capacity and the Securities Intermediaryas Indenture Trustee), by entering into this Indenture, and each Noteholder and each Note Owner, by accepting the benefits of this Indenture, hereby acknowledges and agrees that such Person has no right, title or interest in or to the Other Assets of the Seller. To the extent that, notwithstanding the agreements and provisions contained in the preceding sentence, each of the Owner Trustee, the Indenture Trustee, the Securities Intermediary, each Noteholder or Note Owner and the Certificateholder either (i) asserts an interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or from Other Assets, whether by operation of law, legal process, pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or any successor provision having similar effect under the Bankruptcy Code), then such Person further acknowledges and agrees that any such interest, claim or benefit in or from Other Assets is and will be expressly subordinated to the indefeasible payment in full, which, under the terms of the relevant documents relating to the securitization or conveyance of such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured by such Other Assets (whether or not any such entitlement or security interest is legally perfected or otherwise entitled to a priority of distributions or application under applicable law, including insolvency laws, and whether or not asserted against the Seller), including the payment of post-petition interest on such other obligations and liabilities. This subordination agreement will be deemed a subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each of the Indenture Trustee (in its individual capacity and as the Securities IntermediaryIndenture Trustee), by entering into or accepting this Indenture, the Certificateholder, by accepting the Certificate, and the Owner Trustee, and each Noteholder or Note Owner, by accepting the benefits of this Indenture, hereby further acknowledges and agrees that no adequate remedy at law exists for a breach of this Section 11.19 and the terms of this Section 11.19 may be enforced by an action for specific performance. The provisions of this Section 11.19 will be for the third party benefit of those entitled to rely thereon and will survive the termination of this Indenture.

Subordination of Claims. The Issuer’s obligations under this Indenture are obligations solely of the Issuer and will not constitute a claim against the Seller Depositor to the extent that the Issuer does not have funds sufficient to make payment of such obligations. In furtherance of and not in derogation of the foregoingforegoing and subject to Section 6.04 of the Transfer and Servicing Agreement, each of the Owner Trustee (in its individual capacity and as the Owner Trustee), by accepting the benefits of this Indenture, the Certificateholder, by accepting the Certificate, agreement and the Indenture Trustee (in its individual capacity and the Securities Intermediaryas Indenture Trustee), by entering into this Indenture, and each Noteholder and each Note Owner, by accepting the benefits of this Indenture, hereby acknowledges and agrees that such Person has no right, title or interest in or to the Other Assets of the SellerDepositor. To the extent that, notwithstanding the agreements and provisions contained in the preceding sentence, each of the Owner Trustee, the Indenture Trustee, the Securities Intermediary, Trustee and each Noteholder or Note Owner and the Certificateholder either (i) asserts an interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or from Other Assets, whether by operation of law, legal process, pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or any successor provision having similar effect under the Bankruptcy Code), then such Person further acknowledges and agrees that any such interest, claim or benefit in or from Other Assets is and will be expressly subordinated to the indefeasible payment in full, which, under the terms of the relevant documents relating to the securitization or conveyance of such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured by such Other Assets (whether or not any such entitlement or security interest is legally perfected or otherwise entitled to a priority of distributions or application under applicable law, including insolvency laws, and whether or not asserted against the SellerDepositor), including the payment of post-petition interest on such other obligations and liabilities. This subordination agreement will be deemed a subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each of the Indenture Trustee (in its individual capacity and as the Securities IntermediaryIndenture Trustee), by entering into or accepting this Indenture, the Certificateholder, by accepting the Certificateagreement, and the Owner Trustee, and each Noteholder or Note Owner, by accepting the benefits of this Indenture, hereby further acknowledges and agrees that no adequate remedy at law exists for a breach of this Section 11.19 and the terms of this Section 11.19 may be enforced by an action for specific performance. The provisions of this Section 11.19 will be for the third party benefit of those entitled to rely thereon and will survive the termination of this Indenture. 63 E*Trade 2004-1 Indenture IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Indenture to be duly executed by their respective officers, thereunto duly authorized, all as of the day and year first above written. E*TRADE RV AND MARINE TRUST 2004-1 By: WXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee By: Name: Title: JPMORGAN CHASE BANK, N.A., not in its individual capacity but solely as Indenture Trustee By: Name: Title: XXXXX XX XXXXXXXXX ) ) ss.: COUNTY OF HENNEPIN ) BEFORE ME, the undersigned authority, a Notary Public in and for said county and state, on this day personally appeared l, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of E*Trade RV and Marine Trust 2004-1, a New York common law trust, and that (s)he executed the same as the act of said trust for the purpose and consideration therein expressed, and in the capacities therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of December, 2004. Notary Public in and for the State of Minnesota My commission expires: XXXXX XX XXX XXXX ) ) ss.: COUNTY OF NEW YORK ) BEFORE ME, the undersigned authority, a Notary Public in and for said county and state, on this day personally appeared - , known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of JPMorgan Chase Bank, N.A., a national banking association, and that (s)he executed the same as the act of said corporation for the purpose and consideration therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of December, 2004. Notary Public in and for the State of New York. My commission expires: Schedule I In addition to the representations, warranties and covenants contained in the Indenture, the Issuer hereby represents, warrants, and covenants to the Indenture Trustee as follows on the Closing Date:

Subordination of Claims. The Issuer’s obligations under this Indenture Sale and Servicing Agreement are obligations solely of the Issuer and will not constitute a claim against the Seller to the extent that the Issuer does not have funds sufficient to make payment of such obligations. In furtherance of and not in derogation of the foregoing, each of the Owner Issuer and the Indenture Trustee (in its individual capacity and as the Owner Indenture Trustee), by accepting the benefits of this Indenture, the Certificateholder, by accepting the Certificate, and the Indenture Trustee and the Securities Intermediary, by entering into this Indenture, Sale and each Noteholder and Note Owner, by accepting the benefits of this IndentureServicing Agreement, hereby acknowledges and agrees that such Person has no right, title or interest in or to the Other Assets of the Seller. To the extent that, notwithstanding the agreements and provisions contained in the preceding sentence, each of the Owner Trustee, Issuer and the Indenture Trustee, the Securities Intermediary, each Noteholder or Note Owner and the Certificateholder Trustee either (i) asserts an interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or from Other Assets, whether by operation of law, legal process, pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of Section 1111(b) of the United States Bankruptcy Code or any successor provision having similar effect under the United States Bankruptcy Code), then such Person further acknowledges and agrees that any such interest, claim or benefit in or from Other Assets is and will be expressly subordinated to the indefeasible payment in full, which, under the terms of the relevant documents relating to the securitization or conveyance of such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured by such Other Assets (whether or not any such entitlement or security interest is legally perfected or otherwise entitled to a priority of distributions or application under applicable law, including insolvency laws, and whether or not asserted against the Seller), including the payment of post-petition interest on such other obligations and liabilities. This subordination agreement will be deemed a subordination agreement within the meaning of Section 510(a) of the United States Bankruptcy Code. Each of the Indenture Trustee (in its individual capacity and as the Indenture Trustee) and the Securities Intermediary, by entering into or accepting this Indenture, the Certificateholder, by accepting the Certificate, and the Owner Trustee, and each Noteholder or Note Owner, by accepting the benefits of this Indenture, Issuer hereby further acknowledges and agrees that no adequate remedy at law exists for a breach of this Section 11.19 and the terms of this Section 11.19 may be enforced by an action for specific performance. The provisions of this Section 11.19 will be for the third party benefit of those entitled to rely thereon and will survive the termination of this IndentureSale and Servicing Agreement.

Subordination of Claims. The Issuer’s As used herein, the term “Subordinated Claims” means, with respect to Investors, each Borrower Party and Adviser (with respect only to its delegated right to make Capital Call Notices), all debts and liabilities between or among any two or more of such Persons, whether such debts and liabilities now exist or are hereafter incurred or arise, or whether the obligations under this Indenture are obligations solely of such Person or Persons thereon be direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract, open account, or otherwise, and irrespective of the Issuer and will not constitute a claim against Person or Persons in whose favor such debts or liabilities may, at their inception, have been, or may hereafter be created, or the Seller manner in which they have been or may hereafter be acquired by any Borrower Party or Adviser (including, without limitation, by setoff pursuant to the extent terms of any applicable agreement). Subordinated Claims shall include without limitation all rights and claims of each Borrower Party and Adviser against an Investor under the Constituent Documents of such Person or under the Subscription Agreements. At any time that the Issuer does not have funds sufficient to make payment of such obligations. In furtherance of and not in derogation of Principal Obligation exceeds the foregoing, each of the Owner Trustee (in its individual capacity and as the Owner Trustee), by accepting the benefits of this Indenture, the Certificateholder, by accepting the CertificateAvailable Loan Amount, and until the Indenture Trustee and the Securities Intermediary, by entering into this Indenture, and each Noteholder and Note Owner, by accepting the benefits of this Indenture, hereby acknowledges and agrees that such Person has no right, title or interest in or to the Other Assets of the Seller. To the extent that, notwithstanding the agreements and provisions contained in the preceding sentence, each of the Owner Trustee, the Indenture Trustee, the Securities Intermediary, each Noteholder or Note Owner and the Certificateholder either (i) asserts an interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or from Other Assets, whether by operation of law, legal process, mandatory prepayment pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or any successor provision having similar effect under the Bankruptcy Code)3.04 in connection therewith, then such Person further acknowledges if any, shall be paid and agrees that any such interest, claim or benefit in or from Other Assets is and will be expressly subordinated to the indefeasible payment satisfied in full, whichor, under during the existence and continuation of an Event of Default, neither any Borrower Party nor Adviser shall receive or collect, directly or indirectly any amount upon the Subordinated Claims, other than to obtain funds required to make any mandatory prepayment pursuant to Section 3.04; provided however, unless an Event of Default has occurred and is continuing, Borrower is permitted to pay management fees and other amounts owed to Adviser pursuant to the terms of the relevant documents relating Investment Advisory Agreement and the Administration Agreement. Any Liens, security interests, judgment liens, charges, or other encumbrances upon any Person’s assets securing payment of Subordinated Claims, including, but not limited to, any Liens or security interests on an Investor’s Shareholder Interest in Borrower, shall be and remain inferior and subordinate in right of payment and of security to any Liens, security interests, judgment liens, charges, or other encumbrances upon an Investor’s assets securing such Investor’s obligations and liabilities to Lenders pursuant to any of the securitization Collateral Documents executed by such Person, regardless of whether such encumbrances in favor of any Borrower Party, Adviser or conveyance Lenders presently exist or are hereafter created or attach. Without the prior written consent of such Other AssetsAdministrative Agent, are entitled to be paid fromwhen an Event of Default has occurred and is continuing, entitled to no Borrower Party nor Adviser shall: (a) exercise or enforce any creditor’s or partnership right it may have against an Investor; (b) foreclose, repossess, sequester, or otherwise take steps or institute any action or proceedings (judicial or otherwise, including without limitation, the benefits commencement of, or otherwise secured joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief, or insolvency proceeding) to enforce any Liens, mortgages, deeds of trust, security interest, collateral rights, judgments or other encumbrances on assets of such Investor held by such Other Assets Person; or (whether c) exercise any rights or remedies against an Investor under the Constituent Documents of such Person or the Subscription Agreements, provided that any action taken by Administrative Agent or Lenders in any Borrower Party’s name, or any action taken by any Borrower Party that is required under any Loan Document or to comply with any Loan Document, shall not any such entitlement or security interest is legally perfected or otherwise entitled to be a priority of distributions or application under applicable law, including insolvency laws, and whether or not asserted against the Seller), including the payment of post-petition interest on such other obligations and liabilities. This subordination agreement will be deemed a subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each of the Indenture Trustee and the Securities Intermediary, by entering into or accepting this Indenture, the Certificateholder, by accepting the Certificate, and the Owner Trustee, and each Noteholder or Note Owner, by accepting the benefits of this Indenture, hereby further acknowledges and agrees that no adequate remedy at law exists for a breach violation of this Section 11.19 and the terms of this Section 11.19 may be enforced by an action for specific performance. The provisions of this Section 11.19 will be for the third party benefit of those entitled to rely thereon and will survive the termination of this Indenture5.03.

Subordination of Claims. The IssuerDepositor’s obligations under this Indenture Agreement are obligations solely of the Issuer Depositor and will not constitute a claim against the Seller Depositor to the extent that the Issuer Depositor does not have funds sufficient to make payment of such obligations. In furtherance of and not in derogation of the foregoing, each of the Owner Trustee (in its individual capacity Issuer and as the Owner Trustee), by accepting the benefits of this Indenture, the Certificateholder, by accepting the Certificate, and the Indenture Trustee and the Securities IntermediaryServicer, by entering into this Indenture, and each Noteholder and Note Owner, by accepting the benefits of this IndentureAgreement, hereby acknowledges and agrees that such Person has no right, title or interest in or to the Other Assets of the SellerDepositor. To the extent that, notwithstanding the agreements and provisions contained in the preceding sentence, each of the Owner Trustee, the Indenture Trustee, the Securities Intermediary, each Noteholder or Note Owner Issuer and the Certificateholder Servicer either (i) asserts an interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or from Other Assets, whether by operation of law, legal process, pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or any successor provision having similar effect under the Bankruptcy Code), then such Person further acknowledges and agrees that any such interest, claim or benefit in or from Other Assets is and will be expressly subordinated to the indefeasible payment in full, which, under the terms of the relevant documents relating to the securitization or conveyance of such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured by such Other Assets (whether or not any such entitlement or security interest is legally perfected or otherwise entitled to a priority of distributions or application under applicable law, including insolvency laws, and whether or not asserted against the SellerDepositor), including the payment of post-petition interest on such other obligations and liabilities. This subordination agreement will be deemed a subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each of the Indenture Trustee Issuer and the Securities Intermediary, Servicer by entering into or accepting this Indenture, the Certificateholder, by accepting the Certificate, Agreement hereby will be further deemed to acknowledge and the Owner Trustee, and each Noteholder or Note Owner, by accepting the benefits of this Indenture, hereby further acknowledges and agrees agree that no adequate remedy at law exists for a breach of this Section 11.19 and the terms of this Section 11.19 may be enforced by an action for specific performance. The provisions of this Section 11.19 will be for the third party benefit of those entitled to rely thereon and will survive the termination of this Indenture.Agreement. [SIGNATURES FOLLOW] 38 E*TRADE 2004-1 Transfer and Servicing Agreement IN WITNESS WHEREOF, the parties hereto have caused this Transfer and Servicing Agreement to be duly executed as of the day and year first above written. E*TRADE RV AND MARINE TRUST 2004-1 By: Wxxxx Fargo Bank, National Association, not in its individual capacity but solely as Owner Trustee on behalf of the Trust By: Name: Title: ETCF ASSET FUNDING CORPORATION, as Depositor By: Name: Title: E*TRADE CONSUMER FINANCE CORPORATION, as Servicer By: Name: Title: Acknowledged, accepted and agreed to as of the day and year first above written: JPMORGAN CHASE BANK, N.A., not in its individual capacity but solely as Indenture Trustee By: Name: Title: 39 E*TRADE 2004-1 Transfer and Servicing Agreement APPENDIX A DEFINITIONS