|
<br />4
<br />
<br />resulting from protective advances or payment of Senior Lender’s costs) without the prior written consent
<br />of Subordinate Lender, which consent shall not be unreasonably withheld or delayed.
<br />(d) Subordinate Lender further agrees that if at any time Subordinate Lender should
<br />commence any foreclosure proceeding, or commence any action to execute on any lien obtained by way of
<br />attachment or otherwise on the Property, or otherwise take any action prohibited under Paragraph 3(a),
<br />Senior Lender shall (unless Senior Lender has consented to such action or remedy) be entitled to have the
<br />same vacated, dissolved and set aside by such proceedings at law or otherwise as Senior Lender may deem
<br />proper, and this Agreement shall be and constitute full and sufficient grounds therefor and shall entitle
<br />Senior Lender to become a party to any proceedings at law or otherwise in or by which Senior Lender may
<br />deem it proper to protect its interests hereunder.
<br />(e) No act, omission, breach or other event under this Agreement shall defeat,
<br />invalidate or impair in any respect the absolute, unconditional and irrevocable subordination of the
<br />Subordinate Loan Documents to the Senior Loan Documents as provided in this Agreement.
<br />4. No Marshaling of Assets. Subordinate Lender specifically waives and renounces any right
<br />which it may have under any applicable statutes, whether at law or in equity, to require Senior Lender to
<br />marshal collateral or to otherwise seek satisfaction from any particular assets or properties of the Borrower
<br />or from any third party.
<br />5. Bankruptcy Matters.
<br />(a) The subordination provided for in this Agreement shall apply, notwithstanding the
<br />availability of other collateral to Senior Lender or the actual date and time of execution, delivery,
<br />recordation, filing or perfection of the Senior Mortgage or the Subordinate Mortgage Documents and,
<br />insofar as Subordinate Lender is concerned, notwithstanding the fact that the Senior Indebtedness or any
<br />claim for the Senior Indebtedness may be subordinated, avoided or disallowed, in whole or in part, as
<br />against the Borrower or any other obligor under the Bankruptcy Code or other applicable federal or state
<br />law. In the event of any Proceeding, the Senior Indebtedness shall include all interest and fees accrued on
<br />the Senior Indebtedness, in accordance with and at the rates specified in the Senior Loan Documents, both
<br />for periods before and for periods after the commencement of such Proceeding, even if the claim for such
<br />interest and/or fees is not allowed as against the Borrower or any other obligor pursuant to applicable law.
<br />(b) Without the prior written consent of Senior Lender, Subordinate Lender shall not,
<br />and Subordinate Lender waives any and all right: (1) to request adequate protection (as that term is defined
<br />in the Bankruptcy Code) (and in the event any such adequate protection is awarded to Subordinate Lender,
<br />Subordinate Lender hereby assigns any adequate protection in the form of cash to Senior Lender and any
<br />adequate protection in the form of a lien on or security interest in the Property or any other Collateral is
<br />hereby subordinated to all of Senior Lender’s rights, liens or security interests in or to the Property and such
<br />other Collateral), (2) to file or support any motion for dismissal or relief from the automatic stay (as defined
<br />in the Bankruptcy Code), (3) to request any post-petition interest, (4) to request any sale of Borrower’s
<br />assets, or (5) to file, propose, support, accept or reject any plan of reorganization of Borrower. Subordinate
<br />Lender further agrees that, with respect to any Proceeding: (1) it shall not make any election, give any
<br />consent, commence any action or file any motion, claim, obligation, notice or application or take any other
<br />action in any Proceeding by or against the Borrower or any other obligor without the prior written consent
<br />of Senior Lender; (2) Senior Lender may vote in any such Proceeding any and all claims of Subordinate
<br />Lender against the Borrower or any other obligor, and Subordinate Lender hereby appoints Senior Lender
<br />as its agent, and grants to Senior Lender an irrevocable power of attorney coupled with an interest, and its
<br />proxy, for the purpose of exercising any and all rights and taking any and all actions available to Subordinate
<br />Lender in connection with any case by or against the Borrower or any other obligor in any Proceeding,
|