Intercreditor And Subordination Agreement

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INTERCREDITOR AND SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND SUBORDINATION AGREEMENT (this “Agreement”)
is made as of____________, between ________________, a ______________ (“Mezzanine
Lender”), and _________________, a _________________(“Senior Lender”), on the
following terms and conditions:
Preliminary Statement:
A.
______________________, a _______________ (“Borrower”), and Senior
Lender are parties to that certain Loan Agreement of even date (as it may be modified or
amended the “Loan Agreement”);
B.
_________________________, a ______________, and the sole _________ of
Borrower (“Mezzanine Borrower”) has incurred indebtedness to the Mezzanine Lender
pursuant to that certain loan agreement of even date (the “Mezzanine Loan Agreement”)
providing for the issuance of a promissory note in the principal amount of $___________ dated
as of even date and payable to the order of the Mezzanine Lender (the “Mezzanine Note”); and
C.
Mezzanine Lender wishes to evidence its subordination of the Mezzanine
Indebtedness (as hereinafter defined) to the Senior Indebtedness (as hereinafter defined) as
hereinafter set forth, and Mezzanine Lender and Senior Lender desire to establish certain
agreements between themselves.
Agreement:
NOW, THEREFORE, in consideration of TEN AND NO/100 DOLLARS ($10.00), and
other good and valuable consideration, the receipt and sufficiency of which are acknowledged,
Mezzanine Lender and Senior Lender covenant and agree as follows:
Section 1.
Definitions. For purposes of this Agreement, the following terms shall
have the following meanings:
(a)
Additional Cure Period means, with respect to Non-Monetary Defaults
only, a period of ten (10) days from and after the expiration of the applicable cure period in
instances where the Borrower has a cure period relating to such Non-Monetary Default.
(b)
Affiliate means any other person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of ten percent (10%) or
more of the voting securities of a Person shall be deemed to be control.
(c)
Bankruptcy Code means the Bankruptcy Reform Act of 1978 (11 U.S.C.
§101-1330) as now or hereafter amended or recodified.
1658533_1.DOC

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