Intercreditor And Subordination Agreement

INTERCREDITOR AND SUBORDINATION AGREEMENT THIS INTERCREDITOR AND SUBORDINATION AGREEMENT (this "Agreement") is made as of __________, by and among __________________, having an address at ____________________________ (such entity, together with any subsequent holder of the First Mortgage Loan Documents (hereinafter defined), the "First Mortgagee"), ________________________________, having an address at _______________ (such entity, together with any subsequent holder of the Subordinate Mortgage Loan Documents (hereinafter defined), the "Subordinate Mortgagee") and _____________________, having an address at _________________("Borrower"). WITNESSETH WHEREAS, Borrower is the owner of the fee simple interest in and to that certain parcel of real property more particularly described in Schedule "A" attached hereto and made a part hereof together with all easements and appurtenant interests, and the buildings, fixtures and improvements on such parcel (collectively, the "Premises"); and WHEREAS , the First Mortgagee is the owner and holder of the mortgage(s) described on Schedule "B" annexed hereto and made a part hereof encumbering the Premises and the note(s) secured thereby (such mortgages and notes and any modifications, amendments, consolidations, restatements and supplements or increases arising from Protective Advances and Default (both, as hereinafter defined) from time to time in any of the foregoing, collectively, the "First Mortgage"); and WHEREAS, the Subordinate Mortgagee is the owner and holder of the mortgage(s) described on Schedule "C" annexed hereto and made a part hereof encumbering the Premises and the note(s) secured thereby (such mortgages and notes and, to the extent that the First Mortgagee has given prior written consent, any modifications, amendments, consolidations, restatements and supplements or increases arising from Protective Advances and Default, from time to time in any of the foregoing, collectively, the "Subordinate Mortgage"); and WHEREAS, the First Mortgagee and the Subordinate Mortgagee desire to set forth certain of their respective rights against Borrower with respect to the Collateral (as hereinafter defined). NOW THEREFORE, in consideration of the foregoing, the First Mortgagee and the Subordinate Mortgagee hereby agree as follows: 1. Definitions. The following terms shall have the following meanings (such meanings to apply to such terms in both the singular and plural forms): "Collateral" means all of Borrower's right, title and interest in and to the Premises, the equipment and other personal property situated thereon or therein and used or usable in connection with the operation of the Premises, the contracts affecting the Premises, the leases, licenses and occupancy agreements thereof, the permits used in the operation of the Premises, the rents, issues, proceeds arising from the Premises, including, without limitation, insurance proceeds and condemnation awards, profits and American LegalNet, Inc. www.FormsWorkflow.com other property or interests from or relating to the Premises, and any and all guarantees or indemnities that are included in respectively, the First Mortgage Loan Documents and/or the Subordinate Mortgage Loan Documents and the proceeds from all of the foregoing. "Default" means any event of default, or fact or event, which with the passing of time or the giving of notice or both, would constitute a default or an event of default under and as may be defined in, the First Mortgage, the Subordinate Mortgage and any other First Mortgage Loan Document or Subordinate Mortgage Loan Document. "Enforcement Action" means the commencement of any foreclosure proceeding, the exercise of any statutory power of sale, the taking of a deed or assignment in lieu of foreclosure, the obtaining of a receiver or the exercising of any other remedy or enforcement action against, or the taking of possession or control of, the Collateral, provided however, that the term "Enforcement Action" shall not include: (i) requests or demands made upon Borrower by delivery of notice including the declaration of a Default (but not the acceleration of the maturity of the First Mortgage Indebtedness or the Subordinate Mortgage Indebtedness); (ii) to the extent that the First Mortgagee fails to file a proof of claim in any insolvency or bankruptcy proceeding for the Borrower on behalf of the Subordinate Mortgagee, as its agent or otherwise, the submission of a proof of claim by the Subordinate Mortgagee in any such proceeding; and (iii) provided that the First Mortgagee has obtained relief from an automatic stay under a Bankruptcy Law (hereinafter defined) and that the rights of the First Mortgagee under this Agreement will not be adversely affected, efforts by the Subordinate Mortgagee to obtain relief from an automatic stay under Bankruptcy Law. "First Mortgage Guarantors" means any and all guarantors and/or indemnitors pursuant to the First Mortgage Loan Documents. "First Mortgage Indebtedness" means the indebtedness and other obligations of Borrower to the First Mortgagee incurred pursuant to or evidenced by any of the First Mortgage Loan Documents, and all amounts due or to become due pursuant to the First Mortgage Loan Documents and any advances made thereunder, including, without limitation, interest thereon and any other amounts payable in respect thereof or in connection therewith. "First Mortgage Loan Documents" means the First Mortgage and each other agreement, document or instrument now or hereafter evidencing, securing or relating to the First Mortgage Indebtedness, including, but not limited to, any guarantee or indemnity agreements, as the same may hereafter be amended, supplemented, modified, consolidated or restated. "Person" means any individual, partnership, corporation, limited liability company, joint stock company, trust (including a business or nominee trust), unincorporated association, joint venture, governmental authority or other entity. "Protective Advance" shall mean all sums paid by the holder of a mortgage to protect (a) the priority, validity and enforceability of such mortgage and the instruments 2 American LegalNet, Inc. www.FormsWorkflow.com evidencing or securing such mortgage, or (b) the value or the security of any of the Collateral. "Subordinate Mortgage Indebtedness" means the indebtedness and other obligations of Borrower to the Subordinate Mortgagee incurred pursuant to or evidenced by any of the Subordinate Mortgage