9. Acceleration of Senior Notes. If the Senior Notes become due and payable, whether upon the occurrence of, or upon declaration by the Trustee or the Holders after, an Event of Default under the Senior Note Indenture, at maturity, or otherwise, then the entire principal balance of this Note, all accrued but unpaid interest thereon, all premium, if any, thereon, and all other amounts owing under this Note, shall be accelerated and become immediately due and payable, without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other formalities of any kind, all of which are hereby expressly waived by Borrower. If an acceleration of the maturity of the Senior Notes is rescinded pursuant to the Senior Notes Indenture, then the acceleration of the maturity of the principal of this Note shall automatically be rescinded.
10. Remedies. If this Note becomes due and payable, the Partnership may (a) pursue any legal or equitable remedies that are available to it, (b) proceed to protect and enforce its rights either by suit in equity, by action at law, or by other appropriate proceedings, whether for the specific performance of any covenant or agreement contained in this Note, in aid of the exercise of any power or right granted by this Note, or otherwise, and (c) enforce any other legal or equitable right available as the holder of this Note.
11. Subordination. Notwithstanding anything in this Note or any other agreement between Borrower and the Partnership to the contrary, the indebtedness evidenced by this Note is and shall be expressly subordinated in right of payment to the prior Payment in Full of the Senior Obligations in the following manner:
(a) in the event of any Proceeding involving Borrower, then, until the holders of Senior Debt are Paid in Full, any payment or distribution to which the Partnership would otherwise be entitled in respect of this Note shall be made to the holders of Senior Debt;
(b) if any Event of Default (as defined in each document governing the Senior Debt), has occurred and is continuing with respect to any Senior Debt, then the Partnership shall not receive, ask, demand, sue for, take, accept, retain or collect, directly or indirectly, from Borrower any amount with respect to this Note (other than a deemed payment pursuant to Section 5(b) or Section 13 of this Note); and
(c) in the event that notwithstanding clause (a) or (b) of this Section 11, the Partnership should receive any funds, payments, claims or distributions that are prohibited by such clauses before all Senior Debt shall have been Paid in Full in cash, then an amount equal to the amount of all funds, payments, claims or distributions so received shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Debt (or their representatives), ratably according to the respective aggregate amounts remaining unpaid thereon, to the extent necessary to pay all Senior Debt in full in cash.
Each holder of Senior Obligations, whether now outstanding or hereafter arising, shall be deemed to have entered into the applicable Senior Debt in reliance on the provisions contained herein. The parties hereto agree that the terms hereof shall be enforceable in any Proceeding, and without limiting the foregoing, shall constitute a subordination agreement under Section 510(a) of the Bankruptcy Code, which will be effective before, during and after the commencement of a Proceeding.
- 3 -