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post - filing or post - petition interest is allowed in such proceeding), whether direct or indirect
<br />(including those acquired by assignment or participation), absolute or contingent, joint or
<br />several, due or to become due, now existing or hereafter arising, whether or not: (i) evidenced by
<br />any note, guaranty or other instrument, (ii) arising under any agreement, instrument or document,
<br />(iii) for the payment of money, (iv) arising by reason of an extension of credit, opening of a letter
<br />of credit, loan, equipment lease or guarantee, (v) under any interest or currency swap, future,
<br />option or other interest rate protection or similar agreement, (vi) under or by reason of any
<br />foreign currency transaction, forward, option or other similar transaction providing for the
<br />purchase of one currency in exchange for the sale of another currency, or in any other manner, or
<br />(vii) arising out of overdrafts on deposit or other accounts or electronic funds transfers (whether
<br />by wire transfer or through automated clearing houses or otherwise) or out of the return unpaid
<br />of, or other failure of Bank to receive final payment for, any check, item, instrument, payment
<br />order or other deposit or credit to, deposit or other account, or out of Bank's non - receipt of or
<br />inability to collect funds or otherwise not being made whole in connection with depository
<br />transfer check or other similar arrangements; and any amendments, extensions or renewals and
<br />all costs and expenses of Bank incurred in the documentation, negotiation, modification,
<br />enforcement, collection or otherwise in connection with any of the foregoing, including
<br />reasonable attorneys' fees and expenses.
<br />"Subordinated Debt" means any loans, advances, debts, liabilities, obligations, covenants
<br />and duties owing by Mezzanine Borrower to Creditor in connection with the Mezzanine Loans as
<br />described in the Creditor Documents, of any kind or nature, present or future, whether or not
<br />evidenced by any note, guaranty or other instrument, whether arising under any agreement,
<br />instrument or document, whether or not for the payment of money, whether arising by reason of
<br />an extension of credit, loan or guarantee or in any other manner, whether direct or indirect,
<br />absolute or contingent, joint or several, due or to become due, now existing or hereafter arising
<br />(including any such obligations purchased or otherwise acquired by Creditor), whether consisting
<br />of principal, interest, expense payments, management and consulting fees, liquidation costs,
<br />attorneys' fees and costs or otherwise.
<br />2. Subordination.
<br />(a) Subject to Section 3 hereof, Creditor hereby irrevocably subordinates and
<br />postpones the payment and the time of payment of all the Subordinated Debt and all claims and
<br />demands arising therefrom to the Obligations and directs that the Obligations be paid in full
<br />before the Subordinated Debt.
<br />(b) Creditor shall: (i) make notations on the books of Creditor beside all accounts or
<br />on such other statements evidencing or recording any Subordinated Debt to the effect that such
<br />Subordinated Debt is subject to the provisions of this Agreement, (ii) furnish Bank, upon Bank's
<br />request from time to time, a statement of the account between Creditor and Mezzanine Borrower
<br />representing the Subordinated Debt and copies of each of Creditor Documents, and (iii) give
<br />Bank, upon its request, full and free access to Creditor's books pertaining only to such accounts
<br />with the right to make copies thereof. Each and every Creditor Document shall bear a legend as
<br />set forth in Section 16(b) hereof.
<br />1616593v10 (4982- 95337)
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