Common use of Subordination Absolute Clause in Contracts

Subordination Absolute. (a) All rights and interests of each Senior Creditor hereunder, and all agreements and obligations of the Junior Creditors and the Company hereunder, shall remain in full force and effect irrespective of (i) the invalidity or lack of enforceability of any Senior Notes, (ii) any amendment of, supplement to or other modification of (including by any amendment, waiver or consent) the Senior Debentures or all or any of the Senior Obligations, including any renewal, extension, acceleration or replacement thereof, (iii) the existence, enforceability, perfection or validity of any collateral security or any guarantor, (iv) the liability of any other Person in respect of the Senior Obligations, (v) any failure, delay, neglect or omission by the Agent or any other Senior Creditor to obtain, realize upon or perfect any security interest in any collateral, guaranty, indebtedness, liability or obligation, or by any direct or indirect collateral security therefor, (vi) the bankruptcy, reorganization or insolvency of, or by any other proceeding for the relief of debtors commenced by or against, the Junior Creditors, the Company or any other Person, (vii) the subordination of the Senior Obligations to any other liabilities or obligations or (viii) any other reason or circumstance whatsoever, whether similar or dissimilar to the foregoing, that might otherwise constitute a defense available to, or a discharge of, the Junior Creditors in respect of this Subordination Agreement or the Company in respect of the Senior Obligations or this Subordination Agreement. (b) The Junior Creditors hereby waive any right to require that resort be had by the Agent or any other Senior Creditor against the Company or any other Person, or to require that resort be had by the Agent or any other Senior Creditor to any collateral security. Neither the Agent nor any other Senior Creditor shall have any obligation to enforce any Senior Documents by any action, including making or perfecting any claim against the Company prior to being entitled to the benefits of this Subordination Agreement.

Subordination Absolute. This is an irrevocable agreement of subordination and the Senior Creditors may, without notice to any Person and without impairing or releasing the obligations of the Debtors or the Holders of the Subordinated Obligations; (a) All rights and interests create Senior Obligations by entering into Xxxxxx or otherwise; (b) change the terms of each Senior Creditor hereunder, and all agreements and obligations or increase the amount of the Junior Creditors and Senior Obligations by extending, rearranging, amending, supplementing or otherwise modifying any of the Company hereunderCredit Documents or any Senior Obligations; (c) sell, shall remain exchange, release, or otherwise deal with any letter of credit or any collateral securing any Senior Obligations; (d) release any Person, including, without limitation, any Debtor or any guarantor, liable in full force and effect irrespective of (i) any manner for the invalidity payment or lack of enforceability collection of any Senior NotesObligations; (e) exercise or refrain from exercising any rights against any Debtor or any other Person; and (f) apply any sums received from whatever source, to the payment of the Senior Obligations, in any order. The liability of each Holder of Subordinated Obligations under this Subordination Agreement shall be absolute and unconditional irrespective of: (iia) The lack of validity or unenforceability of the Senior Obligations or any amendment Credit Document for any reason whatsoever, including that the act of creating the Senior Obligations is ultra xxxxx, that the officers or representatives executing the documents creating the Senior Obligations exceeded their authority, that the Senior Obligations violate usury or other laws, or that any Person has defenses to the payment of the Senior Obligations, including breach of warranty, statute of frauds, bankruptcy, statute of limitations, lender liability, or accord and satisfaction; (b) Any change in the time, manner, or place of payment of, supplement to or other modification of (including by in any amendmentterm of, waiver or consent) the Senior Debentures or all or any of the Senior Obligations, including any renewalincrease, reduction, extension, acceleration or replacement thereof, (iii) the existence, enforceability, perfection or validity of any collateral security or any guarantor, (iv) the liability of any other Person in respect rearrangement of the Senior Obligations, any amendment, supplement, or other modification of the Credit Documents, or any waiver or consent granted under the Credit Documents, including waivers of the payment and performance of the Senor Obligations; (vc) Any release, exchange, subordination, waste, or other impairment (including negligent, willful, unreasonable, or unjustifiable impairment) of any failurecollateral securing payment of the Senior Obligations; the failure of any Agent, delay, neglect or omission by the Agent any Bank or any other Senior Creditor Person to obtainexercise diligence or reasonable care in the preservation, realize upon protection, enforcement, sale, or perfect any security interest in other handling of any collateral, guaranty, indebtedness, liability ; the fact that any Lien or obligationassignment related to any collateral for the Senior Obligations shall not be properly perfected, or by shall prove to be unenforceable or subordinate to any direct other Lien or indirect assignment; (d) Any full or partial release of any Person; (e) The failure to apply or the manner of applying payments, collateral security thereforor the proceeds of collateral against the Senior Obligations; (f) Any change in the existence, (vi) organization or structure of any Person; any change in the shareholders, directors, or officers of any Person; or the insolvency, bankruptcy, reorganization or insolvency ofliquidation, or by dissolution of any Person or any defense that may arise in connection with or as a result of any such insolvency, bankruptcy, liquidation or dissolution; (g) The failure to give notice of any Hedge, notice of any amendment, supplement, or other proceeding modification of any Credit Document, notice of the execution of any document or agreement creating new Senior Obligations, notice of any default or event of default, however denominated, under the Credit Documents, notice of intent to demand, notice of demand, notice of presentment for payment, notice of nonpayment, notice of intent to protest, notice of protest, notice of grace, notice of dishonor, notice of intent to accelerate, notice of acceleration, notice of bringing of suit, notice of any Person’s transfer of Senior Obligations, notice of the relief financial condition of debtors commenced by or againstother circumstances regarding any Person, the Junior Creditorsnotice of any Event of Default, the Company any Present Value Deficiency or any other Person, (vii) the subordination Present Value Matter or any other notice of any kind relating to the Senior Obligations Obligations; (h) Any payment or grant of collateral by any Person to any Bank, Agent or other liabilities Person being held to constitute a preference under bankruptcy laws, or obligations for any reason any Bank, Agent or other Person is required to refund such payment or release such collateral; (viiii) any Any other reason action taken or circumstance whatsoeveromitted which affects the Senior Obligations, whether similar or dissimilar to the foregoing, not such action or omission prejudices any Holder of Subordinated Obligations; (j) Any claim or right of set-off that any Holder of Subordinated Obligations may have; and (k) Any other circumstances which might otherwise constitute a defense available to, or a discharge of, the Junior Creditors in respect of this Subordination Agreement or the Company in respect of the Senior Obligations or this Subordination Agreementany Person. (b) The Junior Creditors hereby waive any right to require that resort be had by the Agent or any other Senior Creditor against the Company or any other Person, or to require that resort be had by the Agent or any other Senior Creditor to any collateral security. Neither the Agent nor any other Senior Creditor shall have any obligation to enforce any Senior Documents by any action, including making or perfecting any claim against the Company prior to being entitled to the benefits of this Subordination Agreement.

Subordination Absolute. The Senior Loan Documents shall constitute a lien upon the Collateral which is unconditionally and under all circumstances (including, without limitation, any impairment of the lien ofthe Subordinate Deed of Trust and Subordinate Lender's security interest in the Collateral) prior to the lien of the Subordinate Loan Documents. Senior Lender shall have no duty or responsibility, and the priority of the lien of the Senior Loan Documents over the lien of the Subordinate Loan Documents shall in no way be affected or diminished by any failure of Senior Lender, to consult with, obtain the consent of or in any way communicate with or notify Subordinate Lender regarding any act or omission by Senior Lender relating to the Collateral, the Senior Loan, the Senior Loan Documents, Borrower or otherwise. Without limiting the generality of the foregoing, Subordinate Lender agrees as follows: (a) All rights and interests of each Senior Creditor hereunderSubordinate Lender has been afforded the opportunity to review, and all agreements and obligations of the Junior Creditors and the Company hereunder, shall remain in full force and effect irrespective has made such review as it has deemed necessary of (i) the invalidity or lack of enforceability of any Senior NotesLoan Documents, and (ii) all agreements, including but not limited to any amendment ofloan or escrow agreements, supplement to or other modification between Borrower and Senior Lender for the disbursement, repayment and redisbursement of (including by any amendment, waiver or consent) the proceeds of the Senior Debentures Loan; (b) Senior Lender in making disbursements of the Senior Loan is under no obligation or duty to, nor has Senior Lender represented that it will, see to the application of the proceeds of the Senior Loan by Borrower and any application or use of such proceeds for purposes other than those provided for in the Senior Loan Documents shall not defeat the subordination agreed to in Section 1 above, either in whole or in part; (c) Subordinate Lender's agreement to subordinate is applicable with respect to all disbursements or advances made or to be made pursuant to the Senior Loan Documents, whether optional or obligatory; (d) Senior Lender need not inquire into the power of Borrower or the authority of its partners or agents acting or purporting to act in its behalf. Any credit granted to Borrower pursuant to the Senior Loan Documents shall be deemed to have been granted in consideration of and in reliance upon this Agreement; (e) Borrower's indebtedness under the Senior Loan Documents may exceed the face amount of the Senior Note without impairing the subordination made above; (f) Upon such terms and at such times as it deems best and without notice to Subordinate Lender, Senior Lender may, without impairing the subordination made above, (i) renew, alter, compromise, accelerate, extend or change the time or manner for the payment of any indebtedness or the performance of any obligation under or evidenced by the Senior Loan Documents; (ii) supplement, modify or amend in any way the Senior Loan Documents; provided, however, that except for increases in the principal amount of the Senior Loan of up to $2,000,000 in the aggregate to cover increases in construction costs and payments for taxes, insurance or any other protective advances necessary to prevent the impairment of Senior Lender's security pursuant to the Senior Loan Documents, Senior Lender may not increase the principal amount of the Senior Loan without Subordinate Lender's consent thereto, which consent shall not be unreasonably withheld, conditioned or delayed; (iii) increase or reduce the rate of interest or release Borrower (by acceptance of a deed in lieu of foreclosure or otherwise) as to all or any portion of the Senior Obligations, including Loan; (iv) accept additional or substituted security for any renewal, extension, acceleration indebtedness or replacement thereof, (iii) the existence, enforceability, perfection or validity performance of any collateral obligation under or evidenced by the Senior Loan Documents; or (v) release or subordinate any security for any indebtedness or the performance of any obligation under or evidenced by the Senior Loan Documents; (g) Senior Lender shall have no duty to disclose to Subordinate Lender any facts Senior Lender may now know or learn later about Borrower, any guarantor of the Senior Loan, the Collateral or any other security for the Senior Loan, regardless of whether Senior Lender has reason to believe that (i) any such facts materially increase Subordinate Lender's risk beyond that which Subordinate Lender intends to assume or (ii) such facts are unknown to Subordinate Lender or Senior Lender has a reasonable opportunity to communicate such facts to Subordinate Lender, it being understood and agreed that Subordinate Lender is fully responsible for being and keeping informed of the financial condition of Borrower, any guarantor for the Senior Loan, the Collateral and of all circumstances bearing on any of them; (h) With or without notice to Subordinate Lender, Senior Lender, in its sole discretion and at any time and from time to time and in such manner and upon such terms as it deems fit may: (i) apply any payments or recoveries from Borrower or realized from any security for the Senior Loan, in such manner, order or priority as Senior Lender sees fit, to the indebtedness of Borrower to Senior Lender under the Senior Loan Documents whether or not such indebtedness is otherwise secured or is due at the time of such application; and (ii) refund to Borrower any payment received by Senior Lender upon any indebtedness under the Senior Loan Documents and the Subordinate Loan Documents shall remain fully subordinate to the amount refunded; (i) No exercise of any right given Senior Lender by the Senior Loan Documents or this Agreement, no failure to exercise any right referred to in the foregoing clause, no dealing by Senior Lender with Borrower or any guarantor, (iv) the liability endorser or any other person, and no impairment or suspension of any other Person right or remedy of Senior Lender or Subordinate Lender shall in respect any way affect any of the obligations of Subordinate Lender under this Agreement or the subordination made by this Agreement, or give Subordinate Lender any recourse against Senior Lender; and (j) Without in any way limiting the foregoing, Senior Lender and Subordinate Lender expressly agree and understand that the continued lien of the Subordinate Loan Documents upon the Collateral is an accommodation agreed to by Senior Lender on the condition that the lien of the Senior ObligationsLoan Documents and the rights of Senior Lender shall in no way be impaired or diminished by, (v) any failure, delay, neglect or omission by the Agent or any other and Subordinate Lender's agreement to that effect is a substantial and material consideration to Senior Creditor to obtain, realize upon or perfect any security interest Lender in any collateral, guaranty, indebtedness, liability or obligation, or by any direct or indirect collateral security therefor, (vi) the bankruptcy, reorganization or insolvency of, or by any other proceeding for the relief of debtors commenced by or against, the Junior Creditors, the Company or any other Person, (vii) the subordination of making the Senior Obligations to any other liabilities or obligations or (viii) any other reason or circumstance whatsoever, whether similar or dissimilar to the foregoing, that might otherwise constitute a defense available to, or a discharge of, the Junior Creditors in respect of this Subordination Agreement or the Company in respect of the Senior Obligations or this Subordination AgreementLoan. (b) The Junior Creditors hereby waive any right to require that resort be had by the Agent or any other Senior Creditor against the Company or any other Person, or to require that resort be had by the Agent or any other Senior Creditor to any collateral security. Neither the Agent nor any other Senior Creditor shall have any obligation to enforce any Senior Documents by any action, including making or perfecting any claim against the Company prior to being entitled to the benefits of this Subordination Agreement.

Subordination Absolute. (a) All rights and interests of the Agent and each other Senior Creditor hereunder, and all agreements and obligations of the Junior Creditors and the Company Borrower hereunder, shall remain in full force and effect irrespective of (i) the invalidity or lack of enforceability of any Senior Notes, (ii) any amendment of, supplement to or other modification of (including by any amendment, waiver or consent) the Senior Debentures or all or any of the Senior Obligations, including any renewal, extension, acceleration or replacement thereof, (iii) the existence, enforceability, perfection or validity of any collateral security or any guarantor, (iv) the liability of any other Person in respect of the Senior Obligations, (v) any failure, delay, neglect or omission by the Agent or any other Senior Creditor to obtain, realize upon or perfect any security interest in any collateralCollateral, guaranty, indebtedness, liability or obligation, or by any direct or indirect collateral security therefortherefore, (vi) the bankruptcy, reorganization or insolvency of, or by any other proceeding for the relief of debtors commenced by or against, the Junior Creditors, the Company Borrower or any other Person, (vii) the subordination of the Senior Obligations to any other liabilities or obligations or (viii) any other reason or circumstance whatsoever, whether similar or dissimilar to the foregoing, that might otherwise constitute a defense available to, or a discharge of, the Junior Creditors in respect of this Subordination Agreement or the Company Borrower in respect of the Senior Obligations or this Subordination Agreement. (b) The Junior Creditors hereby waive any right to require that resort be had by the Agent or any other Senior Creditor against the Company Borrower or any other Person, or to require that resort be had by the Agent or any other Senior Creditor to any collateral security. Neither the Agent nor any other Senior Creditor shall have any obligation to enforce any Senior Documents by any action, including making or perfecting any claim against the Company Borrower prior to being entitled to the benefits of this Subordination Agreement. (c) The Junior Creditors agree that the provisions of this Subordination Agreement shall be applicable notwithstanding the fact that no Senior Obligations may be outstanding from time to time or may have been paid down to zero at any time or from time to time.

Subordination Absolute. Subject to the terms hereof, each of the Junior Lenders and the Junior Subordinated Lender covenants and agrees that its subordinations and other covenants and agreements under this Agreement: (a) All rights shall be absolute and unconditional irrespective of the validity, legality, binding effect or enforceability of any of the terms and provisions of the Senior Loan Instruments; (b) shall survive the execution and delivery of this Agreement, as well as the Senior Loan Instruments, Junior Loan Instruments and Junior Subordinated Loan Instruments, and shall be continuing in nature, whether the Senior Obligations, Junior Obligations or Junior Subordinated Obligations are now or hereafter existing, acquired or created, and irrespective of the fact that from time to time under those terms and provisions monies can be advanced, repaid and readvanced and the outstanding balances may be zero; (c) shall remain and continue in full force and effect without regard i) to any waiver, consent, supplement, modification, amendment or restatement of any term or provision of the Senior Loan Instruments, Junior Loan Instruments or Junior Subordinated Loan Instruments; ii) to any full, partial or non-exercise of any of the Senior Lender's rights, powers, privileges, remedies and interests under any Senior Loan Instrument or applicable law, against any person or with respect to any collateral, which exercise or enforcement may be delayed, discontinued or otherwise not pursued or exhausted for any or no reason whatsoever, or which may be waived, omitted or otherwise not exercised or enforced (whether intentionally or otherwise); iii) to any surrender, repossession, sequestration, foreclosure, conveyance or assignment (by deed in lieu or otherwise), sale, lease or other realization, dealing or disposition respecting any collateral; iv) to any release, subordination or impairment of each Senior Creditor hereunderall or any part of any obligations or collateral or any security interest therein (whether intentionally or otherwise); v) to any extension, and all agreements and obligations stay, moratorium or statute of limitations or similar time constraint under any applicable law; vi) to any act or omission on the part of the Junior Creditors Senior Lender or any other person; or vii) to any other event that might otherwise constitute a legal or equitable counterclaim, defense or discharge of a subordinated party or surety; (d) shall not be diminished or qualified by the death, disability, dissolution, reorganization, insolvency, bankruptcy, custodianship or receivership of the Borrower, any guarantor, surety or pledgor or any other person; and the Company hereunder, (e) shall remain in full force and effect irrespective of (i) effect, and may not be revoked or terminated by the invalidity Junior Lenders or lack of enforceability of any Senior NotesJunior Subordinated Lenders, (ii) any amendment of, supplement to or other modification of (including by any amendment, waiver or consent) the Senior Debentures or all or any of until such time as the Senior Obligations, including any renewal, extension, acceleration the Junior Obligations or replacement thereof, (iii) the existence, enforceability, perfection or validity of any collateral security or any guarantor, (iv) the liability of any other Person in respect of the Senior Junior Subordinated Obligations, (v) as the case may be, shall have been fully paid and satisfied, and those obligations shall not be deemed to have been otherwise fully paid and satisfied so long as any failurenote, delay, neglect letter of credit or omission by the Agent other document or any other Senior Creditor to obtain, realize upon or perfect any security interest in any collateral, guaranty, indebtedness, liability or obligation, or by any direct or indirect collateral security therefor, (vi) the bankruptcy, reorganization or insolvency of, or by any other proceeding for the relief of debtors commenced by or against, the Junior Creditors, the Company or any other Person, (vii) the subordination of the Senior Obligations to any other liabilities or obligations or (viii) any other reason or circumstance whatsoever, whether similar or dissimilar to the foregoing, that might otherwise constitute a defense available to, or a discharge of, the Junior Creditors in respect of this Subordination Agreement or the Company in respect of the Senior Obligations or this Subordination Agreement. (b) The Junior Creditors hereby waive any right to require that resort be had by the Agent or any other Senior Creditor against the Company or any other Person, or to require that resort be had by the Agent or any other Senior Creditor to any collateral security. Neither the Agent nor any other Senior Creditor instrument thereunder shall have any obligation to enforce any Senior Documents by any action, including making continuing force or perfecting any claim against the Company prior to being entitled to the benefits of this Subordination Agreementeffect.

Subordination Absolute. The subordination of the Subordinated Debt to the Obligations and the subordination of security interests and Liens pursuant to Section 3 of this Agreement (athe "Lien Subordination") All rights shall be as provided in this Agreement and interests of each Bank One and any other Senior Creditor hereunderfrom time to time may, without the consent of or any notice to Subordinated Creditor, and all agreements and obligations without affecting, waiving, diminishing, altering, terminating, releasing or impairing in any respect or manner the unconditional subordination of the Junior Creditors and Subordinated Debt to the Company hereunder, shall remain in full force and effect irrespective of Obligations or the Lien Subordination: (i) the invalidity obtain a Lien in any property or lack of enforceability of any Senior Notes, (ii) any amendment of, supplement asset to or other modification of (including by any amendment, waiver or consent) the Senior Debentures or secure all or any of the Senior Obligations, including ; (ii) obtain the primary or secondary liability of any renewal, extension, acceleration Person or replacement thereof, Persons in addition to the Company with respect to all or any of the Obligations; (iii) extend or renew from time to time any of the existence, enforceability, perfection Obligations for any period or validity of any collateral security or any guarantor, periods beyond their original due dates; (iv) the release or compromise any liability of any other Person in or Persons primarily or secondarily liable with respect to all or any of the Senior Obligations, ; (v) any failure, delay, neglect or omission by the Agent or any other Senior Creditor to obtain, realize upon or perfect release any security interest or other Lien that Senior Creditor might now have or hereafter obtain in any collateral, guaranty, indebtedness, liability property or obligation, assets securing all or by any direct of the Obligations and permit any substitution or indirect collateral security therefor, exchange of any such~ property or assets; (vi) waive (either entirely or for a stated period) non-compliance by the bankruptcyCompany with any of the terms, reorganization or insolvency ofprovisions and covenants of the Credit Agreement, any of the Refinancing Documents, any Interest Rate Agreements, or by any of the other proceeding for Loan Documents (as such term is defined in the relief of debtors commenced by or against, the Junior Creditors, the Company or any other Person, Credit Agreement); and (vii) amend, modify and/or restate at any time and from time to time the subordination Credit Agreement, any of the Senior Obligations to Refinancing Documents, any other liabilities or obligations or (viii) any other reason or circumstance whatsoever, whether similar or dissimilar to the foregoing, that might otherwise constitute a defense available toInterest Rate Agreements, or a discharge ofany of the other Loan Documents (as such term is defined in the Credit Agreement), including without limitation any such amendment which may or will increase interest rates on all or any part of the Junior Creditors in respect principal of this Subordination Agreement the Obligations, increase or add other charges and fees to be paid by the Company in respect to Senior Creditor, or increase the aggregate amount of the Senior Obligations, so long as the aggregate principal amount of the Obligations or this Subordination Agreementmay not exceed at any time the sum of $9,500,000.00. (b) The Junior Creditors hereby waive any right to require that resort be had by the Agent or any other Senior Creditor against the Company or any other Person, or to require that resort be had by the Agent or any other Senior Creditor to any collateral security. Neither the Agent nor any other Senior Creditor shall have any obligation to enforce any Senior Documents by any action, including making or perfecting any claim against the Company prior to being entitled to the benefits of this Subordination Agreement.