Common use of Payments Held in Trust Clause in Contracts

Payments Held in Trust. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which is prohibited by this Guaranty on account of any of the Guarantor’s Conditional Rights and either (i) such amount is paid to Guarantor at any time when any part of the Indebtedness or the Guaranteed Obligations shall not have been paid or performed in full or, (ii) regardless of when such amount is paid to Guarantor, any payment made by, or on behalf of, Borrower to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “Preferential Payment”), then such amount paid to Guarantor shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all of the Guarantor’s Conditional Rights, to the extent not validly waived, shall be subordinate to Lender’s right to full payment and performance of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce any of the Guarantor’s Conditional Rights during such period.

Payments Held in Trust. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, payment or claim or distribution which that is prohibited by this Guaranty on account of any of the Guarantor’s Conditional Rights (for avoidance of doubt the foregoing excludes equity distributions made by Borrower from time to time directly or indirectly so long as no Event of Default is continuing) and either (i) such amount is paid to Guarantor at any time when any part of the Indebtedness or the Guaranteed Obligations shall not have been paid or performed in full or, (ii) regardless of when such amount is paid to Guarantor, any payment made by, or on behalf of, Borrower to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “Preferential Payment”), then such amount paid to Guarantor shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all of the Guarantor’s Conditional Rights, to the extent not validly waived, shall be subordinate to Lender’s right to full payment and performance of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce any of the Guarantor’s Conditional Rights during such period.

Payments Held in Trust. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which is prohibited by this Guaranty on account of any of the Guarantor’s 's Conditional Rights and either (i) such amount is paid to Guarantor at any time when any part of the Indebtedness or the Guaranteed Obligations shall not have been paid or performed in full or, (ii) regardless of when such amount is paid to Guarantor, any payment made by, or on behalf of, Borrower to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “"Preferential Payment”"), then such amount paid to Guarantor shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all of the Guarantor’s 's Conditional Rights, to the extent not validly waived, shall be subordinate to Lender’s 's right to full payment and performance of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce any of the Guarantor’s 's Conditional Rights during such period.

Payments Held in Trust. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which that is prohibited by this Guaranty on account of any of the Guarantor’s Conditional Rights and either (i) such amount is paid to Guarantor at any time when any part of the Indebtedness or the Guaranteed Obligations shall not have been paid or performed in full or, (ii) regardless of when such amount is paid to Guarantor, any payment made by, or on behalf of, Borrower to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “Preferential Payment”), then such amount paid to Guarantor shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all of the Guarantor’s Conditional Rights, to the extent not validly waived, shall be subordinate to Lender’s right to full payment and performance of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce any of the Guarantor’s Conditional Rights during such period.

Payments Held in Trust. In the event that, notwithstanding anything the foregoing, either (i) the [Credit Party] shall have made payment to [the contrary in this Guaranty, Guarantor should receive Subordinated Debt Trustee or] any funds, payment, claim or distribution which Debtholder when such payment is prohibited by this Guaranty on account of any of the Guarantor’s Conditional Rights and either (i) such amount is paid to Guarantor at any time when any part of the Indebtedness or the Guaranteed Obligations shall not have been paid or performed in full Section 2.02(a), or, (ii) regardless of when such amount is paid to Guarantor, if during any Payment Blockage Period [the Subordinated Debt Trustee or] any Debtholder shall receive any payment representing the proceeds of a turnover to [the Subordinated Debt Trustee or] any Debtholder of a payment made by, or on behalf of, Borrower in respect of an obligation that is subordinated to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “Preferential Payment”)the Subordinated Debt Instruments, then in each such amount paid to Guarantor case such payment shall be held in trust for the benefit of Lender of, and shall forthwith be paid over or delivered by [the Subordinated Debt Trustee (if the notice required by Section 2.06 has been received by the Subordinated Debt Trustee) or] such Debtholder to, holders of Designated Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Designated Senior Indebtedness may have been issued, as their respective interests may appear[, but only to the extent that, upon notice from the Subordinated Debt Trustee to the holders of Designated Senior Indebtedness that such prohibited payment has been made, the holders of the Designated Senior Indebtedness (or their representative or representatives or a trustee or trustees) notify the Subordinated Debt Trustee in writing of the amounts then due and owing on the Designated Senior Indebtedness, if any, and only the amounts specified in such notice to the Subordinated Debt Trustee shall be paid to Lender to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any holders of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all of the Guarantor’s Conditional Rights, to the extent not validly waived, shall be subordinate to Lender’s right to full payment and performance of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce any of the Guarantor’s Conditional Rights during such period.Designated Senior Indebtedness]/2/.

Payments Held in Trust. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which that is prohibited by this Guaranty on account of any of the Guarantor’s Conditional Rights and either (i) such amount is paid to Guarantor at any time when any part of the Indebtedness or the Guaranteed Obligations shall not have been paid or performed in full or, (ii) regardless of when such amount is paid to Guarantor, any payment made by, or on behalf of, Borrower or Property Owner to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “Preferential Payment”), then such amount paid to Guarantor shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower or Property Owner to Lender may be determined to be a Preferential Payment, all of the Guarantor’s Conditional Rights, to the extent not validly waived, shall be subordinate to Lender’s right to full payment and performance of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce any of the Guarantor’s Conditional Rights during such period.

Payments Held in Trust. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which is prohibited by this Guaranty on account of any of the Guarantor’s Conditional Rights and either (i) such amount is paid Guaranty, Guarantor agrees to Guarantor at any time when any part of the Indebtedness or the Guaranteed Obligations shall not have been paid or performed in full or, (ii) regardless of when such amount is paid to Guarantor, any payment made by, or on behalf of, Borrower to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “Preferential Payment”), then such amount paid to Guarantor shall be held hold in trust for Lender an amount equal to the benefit amount of Lender all funds, payments, claims or distributions so received, and agrees that it shall forthwith have absolutely no dominion over the amount of such funds, payments, claims or distributions so received except to pay them promptly to Lender, and Guarantor covenants promptly to pay the same to Lender. LIENS SUBORDINATE. Guarantor agrees that any liens, security interests, judgment liens, charges or other encumbrances upon Borrower's assets securing payment of the Guarantor Claims shall be paid and remain inferior and subordinate to Lender to be credited and applied any liens, security interests, judgment liens, charges or other encumbrances upon the Indebtedness or Borrower's assets securing payment of the Guaranteed Obligations, regardless of whether matured such encumbrances in favor of Guarantor or unmatured, in such order as Lender presently exist or are hereafter created or attach. Without the prior written consent of Lender, in its sole and absolute discretion, shall determine. To the extent that any of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all of the Guarantor’s Conditional Rights, to the extent not validly waived, shall be subordinate to Lender’s right to full payment and performance of the Indebtedness and the Guaranteed Obligations and Guarantor shall not (i) exercise or enforce any creditor's right it may have against Borrower, or (ii) foreclose, repossess, sequester or otherwise take steps or institute any action or proceedings (judicial or otherwise, including without limitation the commencement of, or 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 Borrower held by Guarantor. BOOKS AND RECORDS Guarantor shall keep adequate books and records of account in accordance with methods reasonably acceptable to Lender, consistently applied and furnish to Lender such financial statements as may, from time to time, be reasonably required by Lender. Lender and its accountants, at Lender's sole cost and expense, shall have the right to examine the records, books, management and other papers of any Guarantor which reflect upon its financial condition, at the Property or at any office regularly maintained by any Guarantor where the books and records are located. Lender and its accountants, at Lender's sole cost and expense, shall have the right to make copies and extracts from the foregoing records and other papers. In addition, Lender and its accountants, at Lender's sole cost and expense, shall have the right to examine and audit the books and records of any Guarantor pertaining to the income, expenses and operation of the Guarantor’s Conditional Rights Property during such period.reasonable business hours at any office of Guarantor where the books and records are located. MISCELLANEOUS

Payments Held in Trust. In the event thatIf, notwithstanding anything to the contrary in provisions of this Guaranty, Guarantor should receive any funds, payment, claim or distribution which is prohibited by this Guaranty on account of any of the Guarantor’s Conditional Rights and either (i) such amount is paid to Guarantor at any time when any part of the Indebtedness or the Guaranteed Obligations shall not have been paid or performed in full or, (ii) regardless of when such amount is paid to GuarantorAgreement, any payment made byor distribution of any character (whether in cash, securities, or on behalf of, Borrower to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver other property) or any other Personsecurity shall be received by the Subordinated Creditor in contravention of the terms of this Agreement, whether under any bankruptcy act or otherwise (such payment, a “Preferential Payment”)distribution or security shall not be commingled with any asset of the Subordinated Creditor, then such amount paid to Guarantor shall be held in trust for the benefit of Lender of, and shall forthwith be paid over or delivered or transferred to, the Beneficiaries, or their representative, ratably according to Lender to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any aggregate amounts remaining unpaid on account of the provisions Beneficiary Indebtedness held by each of them, for application to the payment of all Beneficiary Indebtedness then remaining unpaid, until all such Beneficiary Indebtedness shall have been paid in full. Payment in Full on Senior Indebtedness For purposes of this Article 4 Agreement, the Senior Indebtedness shall not be enforceabledeemed to have been paid in full until the Senior Lenders shall have received full payment of the Senior Indebtedness in cash, Guarantor agrees that until all Letters of Credit shall have terminated and all Commitments of the Senior Lenders under the Credit Agreement shall have irrevocably terminated. The Subordinated Creditor shall, substantially simultaneously with the execution and delivery hereof, cause a conspicuous legend to be placed on each of the instruments evidencing Subordinated Indebtedness to the following effect: “This instrument and the indebtedness evidenced hereby is subordinated, in the manner and to the extent set forth in an agreement dated , (as such agreement may from time to time be amended, restated, modified, or supplemented, the “Subordination Agreement”), by the maker and payee of this instrument in favor of JPMorgan Chase Bank, National Association as Administrative Agent for the “Lenders” referred to therein, to all Senior Indebtedness as defined therein), and each holder of this instrument, by its acceptance hereof, shall be bound by the Subordination Agreement.” and upon request by the Administrative Agent deliver a copy of each of the instruments evidencing Subordinated Debt, as so marked, to the Administrative Agent within 60 days following such request. In the event of any conflict between any instrument evidencing Subordinated Indebtedness and the Guaranteed Obligations have been paid terms of this Agreement, the terms of this Agreement shall control. All payments and performed distributions received by the Senior Lenders in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all respect of the Guarantor’s Conditional RightsSubordinated Indebtedness, to the extent not validly waivedreceived in or converted into cash, shall may be subordinate applied by the Senior Lenders first to Lender’s right the payment of any and all expenses (including reasonable legal fees and expenses) paid or incurred by the Administrative Agent in enforcing this Agreement, or in endeavoring to full payment and performance of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce collect or realize upon any of the Guarantor’s Conditional Rights during such period.Subordinated Indebtedness or any collateral Exh E — 5 Form of Subordination Agreement

Payments Held in Trust. In the event that, notwithstanding anything (a) The Subordinated Creditor will hold in trust and immediately pay over to the contrary Senior Bank, in the same form of payment received, with appropriate endorsements, for application to the Senior Debt, any cash amount that any Loan Party pays to the Subordinated Creditor with respect to the Subordinated Debt (except for those payments expressly permitted to be made pursuant to Section 2(c) above), and will hold in trust as collateral for the Senior Debt any other assets of any Loan Party that the Subordinated Creditor may receive with respect to Subordinated Debt. Any such payments or distributions so paid over to the Senior Bank by the Subordinated Creditor in accordance with this Guaranty, Guarantor should receive clause (a) shall not constitute payments with respect to the Subordinated Debt and as such will not reduce the outstanding amount of the Subordinated Debt. (b) If any funds, payment, claim payment or distribution which is prohibited of any character (whether in cash, securities or other property) or any security shall be received by this Guaranty on account any holder of any of the Guarantor’s Conditional Rights and either (i) such amount is paid to Guarantor at Subordinated Debt in contravention of any time when any part of the Indebtedness terms of this Agreement, such payment or the Guaranteed Obligations shall not have been paid distribution or performed in full or, (ii) regardless of when such amount is paid to Guarantor, any payment made by, or on behalf of, Borrower to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “Preferential Payment”), then such amount paid to Guarantor security shall be held in trust for the benefit of Lender of, and shall forthwith be paid over or delivered and transferred to Lender the Senior Bank, for application to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any payment of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all of the Guarantor’s Conditional RightsSenior Debt remaining unpaid, to the extent not validly waived, shall be subordinate necessary to Lender’s right to full payment and performance pay all such Senior Debt in full. In the event of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce failure of any holder of any of the Guarantor’s Conditional Rights during Subordinated Debt to endorse or assign any such periodpayment, distribution or security, the Senior Bank is hereby irrevocably authorized to endorse or assign the same. Any such payments or distributions so paid over to the Senior Bank by the Subordinated Creditor in accordance with this clause (b) shall not constitute payments with respect to the Subordinated Debt and as such will not reduce the outstanding amount of the Subordinated Debt.

Payments Held in Trust. In the event that, notwithstanding anything (a) Each Subordinated Creditor will hold in trust and immediately pay over to the contrary Senior Bank, in the same form of payment received, with appropriate endorsements, for application to the Senior Debt, any cash amount that any Loan Party pays to such Subordinated Creditor with respect to the Subordinated Debt (except for those payments expressly permitted to be made pursuant to Section 2(c) above), and will hold in trust as collateral for the Senior Debt any other assets of any Loan Party that either Subordinated Creditor may receive with respect to Subordinated Debt. Any such payments or distributions so paid over to the Senior Bank by the Subordinated Creditors in accordance with this Guaranty, Guarantor should receive clause (a) shall not constitute payments with respect to the Subordinated Debt and as such will not reduce the outstanding amount of the Subordinated Debt. (b) If any funds, payment, claim payment or distribution which is prohibited of any character (whether in cash, securities or other property) or any security shall be received by this Guaranty on account any holder of any of the Guarantor’s Conditional Rights and either (i) such amount is paid to Guarantor at Subordinated Debt in contravention of any time when any part of the Indebtedness terms of this Agreement, such payment or the Guaranteed Obligations shall not have been paid distribution or performed in full or, (ii) regardless of when such amount is paid to Guarantor, any payment made by, or on behalf of, Borrower to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “Preferential Payment”), then such amount paid to Guarantor security shall be held in trust for the benefit of Lender of, and shall forthwith be paid over or delivered and transferred to Lender the Senior Bank, for application to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any payment of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all of the Guarantor’s Conditional RightsSenior Debt remaining unpaid, to the extent not validly waived, shall be subordinate necessary to Lender’s right to full payment and performance pay all such Senior Debt in full. In the event of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce failure of any holder of any of the Guarantor’s Conditional Rights during Subordinated Debt to endorse or assign any such periodpayment, distribution or security, the Senior Bank is hereby irrevocably authorized to endorse or assign the same. Any such payments or distributions so paid over to the Senior Bank by the Subordinated Creditors in accordance with this clause (b) shall not constitute payments with respect to the Subordinated Debt and as such will not reduce the outstanding amount of the Subordinated Debt.

Payments Held in Trust. (a) In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which is prohibited by this Guaranty on account of any of the Guarantor’s 's Conditional Rights and either (i) such amount is paid to Guarantor at any time when any part of the Indebtedness or the Guaranteed Obligations shall not have been paid or performed in full or, (ii) regardless of when such amount is paid to Guarantor, any payment made by, or on behalf of, Borrower to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “"Preferential Payment”"), then such amount paid to Guarantor shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all of the Guarantor’s 's Conditional Rights, to the extent not validly waived, shall be subordinate to Lender’s 's right to full payment and performance of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce any of the Guarantor’s 's Conditional Rights during such period. (b) Notwithstanding the foregoing or any other provisions of this Guaranty to the contrary, including without limitation Section 4.1, so long as there is no continuing Event of Default, Guarantor shall be entitled to receive and retain any and all distributions of capital or of profit that may be made by Borrower to Guarantor, directly or indirectly, in accordance with the related organizational documents and Guarantor shall not be required to deliver any such payments to Lender or to hold any such payments in trust for Lender.

Payments Held in Trust. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which that is prohibited by this Guaranty on account of any of the Guarantor’s Conditional Rights and either (i) such amount is paid to Guarantor at any time when any part of the Indebtedness or the Guaranteed Obligations shall not have been paid or performed in full or, (ii) regardless of when such amount is paid to Guarantor, any payment made by, or on behalf of, Borrower to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “Preferential Payment”), then such amount paid to Guarantor shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all of the Guarantor’s Conditional Rights, to the extent not validly waived, shall be subordinate to Lender’s right to full payment and performance of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce any of the Guarantor’s Conditional Rights during such period.11

Payments Held in Trust. In the event that, notwithstanding anything to the contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which that is prohibited by this Guaranty on account of any of the Guarantor’s Conditional Rights and either (i) such amount is paid to Guarantor at any time when any part of the Indebtedness or the Guaranteed Obligations shall not have been paid or performed in full or, (ii) regardless of when such amount is paid to Guarantor, any payment made by, or on behalf of, Borrower to Lender is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Lender or paid over to a trustee, receiver or any other Person, whether under any bankruptcy act or otherwise (such payment, a “Preferential Payment”), then such amount paid to Guarantor shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied upon the Indebtedness or the Guaranteed Obligations, whether matured or unmatured, in such order as Lender, in its sole and absolute discretion, shall determine. To the extent that any of the provisions of this Article 4 shall not be enforceable, Guarantor agrees that until such time as the Indebtedness and the Guaranteed Obligations have been paid and performed in full and the period of time has expired during which any payment made by Borrower to Lender may be determined to be a Preferential Payment, all of the Guarantor’s Conditional Rights, to the extent not validly waived, shall be subordinate to Lender’s right to full payment and performance of the Indebtedness and the Guaranteed Obligations and Guarantor shall not enforce any of the Guarantor’s Conditional Rights during such period.