Common use of Agreements by the Borrower Clause in Contracts

Agreements by the Borrower. The Borrower agrees that it will not make any payment of any of the Subordinated Debt, or take any other action, in contravention of the provisions of this Agreement. 18. Obligations under this Agreement Not Affected. (a) All rights and interests of the Senior Creditors under this Agreement, and all agreements and obligations of each of the Subordinated Creditors and the Borrower under this Agreement, remain in full force and effect irrespective of: (i) any lack of validity or enforceability of the Note Issuance Agreement or the other Agreement Documents; (ii) any increase or decrease in the amount of the Senior Obligations or the commitments therefor, any increase or decrease in the interest rates applicable to the Senior Obligations, any change in the time, manner or place of payment of, or in any other term of, all or any of the Senior Obligations, or any other amendment or waiver of or any consent to or departure from the Note Issuance Agreement or the other Agreement Documents; (iii) any exchange, release or nonperfection of any Collateral, or any release or amendment or waiver of or consent to or departure from any guaranty, for all or any of the Senior Obligations; or (iv) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Borrower in respect of the Senior Obligations or either of the Subordinated Creditors in respect of this Agreement. (b) To the extent that the Borrower or any guarantor of or provider of collateral for the Senior Obligations makes any payment on the Senior Obligations that is subsequently invalidated, declared to be a fraudulent or preferential transfer, conveyance or set aside or is required to be repaid to the Borrower as a debtor in possession, a trustee, receiver or any other party under any bankruptcy, insolvency or reorganization act, state or federal law, common law or equitable cause (such payment being hereinafter referred to as a “Voided Payment”), then to the extent of such Voided Payment, that portion of the Senior Obligations that had been previously satisfied by such Voided Payment will be revived and continue in full force and effect as if such Voided Payment had never been made. If a Voided Payment is recovered from a Senior Creditor, an Event of Default is deemed to have existed and to be continuing under the Note Issuance Agreement from the date of such Senior Creditor’s initial receipt of such Voided Payment until the full amount of such Voided Payment is restored to such Senior Creditor. During any continuance of any such Event of Default, this Agreement remains in full force and effect with respect to the Subordinated Debt. To the extent that either of Subordinated Creditors have received any payments with respect to the Subordinated Debt subsequent to the date of a Senior Creditor’s initial receipt of such Voided Payment and such payments have not been invalidated, declared to be a fraudulent or preferential transfer, conveyance or set aside or are required to be repaid to the Borrower as a debtor in possession, a trustee, receiver, or any other party under any bankruptcy, insolvency or reorganization act, state or federal law, common law or equitable cause, each of the Subordinated Creditors will be obligated and agree that any such payment so made or received will be deemed to have been received in trust for the benefit of such Senior Creditor and each of the Subordinated Creditors agrees to pay to such Senior Creditor upon demand, the amount so received by either of the Subordinated Creditors during such period of time to the extent necessary fully to restore to such Senior Creditor the amount of such Voided Payment. (c) Except as specifically described in this Agreement, nothing contained in this Agreement or in any instrument evidencing any Subordinated Debt is intended to or impairs, as between the Borrower, its creditors other than the Senior Creditors and the Subordinated Creditors, the obligations of the Borrower, which are absolute and unconditional, to pay to each of the Subordinated Creditors the Subordinated Debt as and when it becomes due and payable in accordance with its terms, subject, however, to the terms of this Agreement. Except as specifically described in this Agreement, nothing contained in this Agreement or in any instrument evidencing any Subordinated Debt is intended to or affects the relative rights of any of the Subordinated Creditors and creditors of the Borrower other than the Senior Creditors. As between the Borrower, its creditors other than the Senior Creditors and each of the Subordinated Creditors, no payments or distributions otherwise payable or deliverable in respect of the Subordinated Debt, which are paid or delivered to the Senior Creditors under this Agreement, are deemed to be a payment by the Borrower on account of the Subordinated Debt. 19.