Exhibit 10.25


 


	
   

  	
   

  	
  INSTR # 2006000119761, Pages 33

  
	
   

  	
   

  	
  Doc Type
  AGR, Recorded 03/22/2006
  at 01:58 PM,

  
	
   

  	
   

  	
  Charlie
  Green, Lee County Clerk of Circuit Court

  
	
  Prepared by and Return to:

  	
   

  	
   Rec.
  Fee $282.00

  
	
   

  	
   

  	
  Deputy
  Clerk KCARTWRIGHT

  
	
  JONES DAY

  	
   

  	
  #8

  
	
  1420 Peachtrec Street, N.E.

  	
   

  	
   

  
	
  Suite 800

  	
   

  	
  INSTR # 2006000138161, Pages 33

  
	
  Atlanta, Georgia 30309-3053

  	
   

  	
  Doc Type
  AGR, Recorded 04/04/2006 at 02:35 PM,

  
	
  Attention: Tracy S. Plott, Esq.

  	
   

  	
  Charlie Green,
  Lee County
  Clerk of Circuit Court

  
	
   

  	
   

  	
   Rec.
  Fee $282.00

  
	
  Property Address:

  	
   

  	
  Deputy
  Clerk JHORTON

  
	
  15250 Sonoma
  Drive, Fort Myers , Florida

  	
   

  	
  #7

  
	
   

  	
   

  	
   

  
	
  Tax Folio Number:
  33-45-24-13-00000.0010

  	
   

  	
   

  



 


This
document is being recorded to correct servicer’s error in legal description.


 


SUBORDINATION AND INTERCREDITOR AGREEMENT


 


Made By and Between:


 


MTRY FUNDING, LLC


 


and


 


CORUS BANK, N.A.


 


Dated as of March 21, 2006


 


 

















 


SUBORDINATION AND INTERCREDITOR AGREEMENT


 


THIS SUBORDINATION
AND INTERCREDITOR AGREEMENT (this “Agreement”) dated for reference purposes only as of March 21, 2006 is made by and between CORUS BANK, N.A., a national banking
association, its successors and assigns, in its capacity as a lender (“Senior
Lender”) and MTRY FUNDING,
LLC, a Delaware limited liability company (“Junior Lender”).


 


Background:


 


A.            BTS Monterrey
Holdings LLC, a Delaware limited liability company (“Borrower”),
and Senior Lender have entered into that certain Loan Agreement, dated
of even date herewith (the “Senior Loan
Agreement”),  wherein, among other things, Senior
Lender has agreed to make, and Borrower has agreed to accept, a loan in the
maximum principal amount of $69,000,000 (the “Senior
Loan”)  upon the terms and conditions set
forth in the Senior Loan Agreement.


 


B.            The Senior Loan
is evidenced by, among other things, that certain Promissory Note, dated of
even date herewith, in the maximum principal amount of the Senior Loan made by
Borrower and payable to Senior Lender (the “Senior
Note”).


 


C.            The Senior Note
is secured by, among other things, that certain Deed to Secure Debt, Assignment
of Rents, Security Agreement and Fixture Filing, from Borrower to Senior
Lender, dated of even date herewith (the “Senior
Mortgage”)  in respect of the premises, which
premises is legally described in Exhibit A
attached hereto (the “Premises”).


 


D.            Junior Lender and
BTS Monterrey LLC, a Delaware limited liability company (“Junior
Borrower”)  have
entered into that certain Loan Agreement of even date herewith (the “Junior Loan Agreement”),  wherein,
among other things, Junior Lender has agreed to make a loan to Junior Borrower
in the original principal amount of $8,700,000 (the “Junior Loan”).  The Junior Loan is evidenced by,
among other things, that certain Promissory Note of even date herewith, in the
original principal amount equal to the Junior Loan made by Junior Borrower and
payable to Junior Lender (the “Junior Note”).  The
Junior Note is secured by, among other things, that certain Pledge and Security
Agreement of even date herewith from Junior Borrower to Junior Lender, which
pledges to Junior Lender the Ownership Interests (such pledge agreement is
hereinafter referred to as, the “Junior
Pledge”);


 


E.             Senior Lender
and Junior Lender desire to enter into this Agreement to provide for the
relative priority of the Senior Indebtedness (as
defined below) and the Junior Indebtedness (as defined below)
on the terms and conditions herein below set forth, and to evidence certain
agreements with respect to the relationship between the Junior Loan and the
Junior Indebtedness, on the one hand, and the Senior Loan and the Senior
Indebtedness, on the other hand.


 


F.             All capitalized
terms used and not otherwise defined herein shall have the respective meanings
assigned thereto in the Senior Loan Agreement.


 


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Statement of Agreement


 


NOW THEREFORE, in
consideration of the sum of ONE DOLLAR ($1.00) AND OTHER GOOD AND VALUABLE
CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged,
Senior Lender and Junior Lender do hereby agree as follows:


 


SECTION 1. Recitals.  The above recitals are true
and correct and are hereby incorporated herein by this reference.


 


SECTION 2. Definitions.  For all
purposes of this Agreement, the following terms shall have the respective
meanings hereinafter specified:


 


“Accounts” shall mean any bank
accounts, escrow accounts or similar arrangements in which the Borrower’s funds
or funds in which the Borrower has an interest (contingent or otherwise) are
deposited, including Accounts held by Senior Lender.


 


“Affiliate” shall mean with respect to
any person or entity (i) any person or entity which is directly or
indirectly (through one or more intermediaries) in control of, under common
control with, or controlled by such entity or person, (ii) any immediate
family member of an individual that directly or indirectly (through one or more
intermediaries) controls an entity or (iii) any person or entity that
directly or indirectly (through one or more intermediaries) is in control of,
under common control with, or controlled by, a person or entity
that is an Affiliate of such person or entity pursuant to clauses (i) or (ii) above.


 


“Bankruptcy Code” shall mean Title 11 of the
United States Code (11 U.S.C. Sec. 101 et. seq.) and the rules and
regulations adopted thereunder, as  in effect from time to time.


 


“Borrower” is defined in Recital A  to this Agreement.


 


“Borrower Party” shall mean each of Borrower,
Junior Borrower and each Guarantor.


 


“Business Day” shall mean any day other
than a Saturday, Sunday or federal holiday.


 


“Cash Collateral” shall mean any cash
collateral as defined in Section 363(a) of the Bankruptcy Code, to
the extent relating to, arising from, or generated by, the Premises or in which
Senior Lender has an interest under the terms of the Senior Loan Documents.


 


“Closing Date” shall mean the date that is
five (5) Business Days after the date upon which Junior
Lender elects to purchase the Senior Loan pursuant to Section 9  of this Agreement, but in
any event prior to the Purchase Cut-Off Time.


 


“Control” (including the terms “controlled
by” and “under common control with”) shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of the entity in question.


 


“Curable Non-Monetary Event of Default” shall mean any
Non-Monetary Event of Default other than a Personal Event of Default or an
Insolvency Event of Default.


 


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“Deed in Lieu” is defined in Section 10  of this Agreement.


 


“Enforcement Action” shall mean the exercise or
the attempted exercise (which shall include the commencement thereof) of any
remedies under the Junior Loan Documents or under applicable laws, whether
against the Premises (or any portion thereof), the Borrower, any Borrower
Party, any Guarantor or any other Person who is or may become liable on the
Senior Loan or the Junior Loan, whether judicial or non-judicial, including, (i) any
litigation, (ii) any foreclosure proceeding, (iii) the exercise of
any power of sale, (iv) the sale by advertisement, (v) the taking of a. Deed in Lieu, (vi) any
UCC sale; (vii) any other realization or attempted realization of any real
estate or non-real estate collateral, (viii) the exercise of any power of
attorney, (ix) the application for, or the obtaining of, a receiver or (x) the
termination or cancellation of any lease, license, contract or other agreement
between Borrower and any Person (other than Junior Lender and its affiliates)
or the request or demand that such Person attorn to or perform for the benefit
of Junior Lender. Notwithstanding the foregoing, but subject in all respects to
the observance by Junior Lender of all of the other covenants, undertakings and
agreements of Junior Lender in this Agreement, including, Section 3  hereof, “Enforcement
Action” shall not include any of the following: (i) the cure by Junior
Lender of any Default or Event of Default under the Senior Loan Documents to the
extent permitted under this Agreement, or (ii) the filing of any claim by
Junior Lender in any Insolvency Proceeding.


 


“Guarantor” shall mean each of John
Naumann, Jeffrey Milton and F. William Caple.


 


“including” shall mean “including,
without limitation,”


 


“Insolvency Event of Default” shall mean any
Event of Default arising from an Insolvency Proceeding.


 


“Insolvency Proceeding” shall mean (i) any
case or proceeding commenced by or against the Borrower, any Borrower Party or
any Guarantor under the Bankruptcy Code or (ii) any other voluntary or involuntary
insolvency, liquidation, reorganization or other similar proceeding concerning
Borrower, any Borrower Party or any Guarantor, or (iii) any action for the
dissolution of Borrower, any Borrower Party or any Guarantor, or (iv) any
proceeding (judicial or otherwise) concerning the application of the assets of
Borrower, any Borrower Party or any Guarantor for the benefit of its creditors
or (v) any marshalling of assets or the appointment of, or any proceeding
seeking the appointment of, a trustee, receiver or other similar custodian, for
all or any substantial part of the assets of Borrower, any Borrower Party or
any Guarantor or (vi) any other action concerning the adjustment of the
debts of Borrower, any Borrower Party or any Guarantor.


 


“Junior Borrower” is defined in Recital D
to this Agreement.


 


“Junior Indebtedness” shall mean all of the
present and future indebtedness owing to Junior Lender by Junior Borrower or
any Person under or in connection with the Junior Loan or the Junior Loan
Documents, including principal (including all protective advances), interest
(including interest at the default rate), late charges, fees, collection costs,
expenses (including attorneys’ fees) and all other amounts, liabilities and
obligations of Junior Borrower or any other Person to Junior Lender in respect
of the Junior Loan, all whether fixed or contingent, matured or


 


4

















 


unmatured,
liquidated or unliquidated, and including all extensions and renewals thereof
(including any obligations owing to Junior Lender as a result of the restructuring
of the Junior Loan under any Plan that may be confirmed in any Insolvency
Proceeding or that may otherwise be received by Junior Lender in such
Insolvency Proceeding on account of the Junior Loan)


 


“Junior Lender” is defined in the
introductory paragraph to this Agreement.


 


“Junior Loan” is defined in Recital D  to this Agreement.


 


“Junior Loan Documents” shall mean all
present and future agreements, documents, and/or instruments evidencing,
documenting, securing or otherwise relating to any or all of the Junior
Indebtedness, all as the same may be amended, modified, extended, renewed or
restated from time to time and including the Junior Note and the Junior Pledge.


 


“Junior Note” is defined in Recital D  to this Agreement.


 


“Junior Pledge”  is defined in Recital D  to this Agreement


 


“Monetary Event of Default” shall mean an
Event of Default under the Senior Loan Documents that can be cured by the
payment of money. For avoidance of doubt, a Monetary Event
of Default shall include the failure of the Borrower to make a Deficiency
Deposit.


 


“Non-Monetary Event of Default” shall mean an
Event of Default under the Senior Loan Documents other than a Monetary Event of
Default or a Personal Event of Default.


 


“Obligated Party” shall mean Borrower, each
Borrower Party, each Guarantor and each other Person who is or may become
liable to pay or perform the Senior
Indebtedness or the Junior Indebtedness.


 


“Ownership Interests” shall mean all of the direct
or indirect membership interests in Borrower which are collateral for the
Junior Loan under the Junior Pledge, but Ownership Interests shall not include (i) any
property owned by the Borrower or in which the Borrower has an interest or (ii) any
Senior Loan Collateral that is paid, disbursed or distributed to any Borrower Party
in violation of the Senior Loan Agreement.


 


“Paid In Full” or “Payment in Full” shall mean (i) the
payment in full of the Senior Indebtedness in cash or cash equivalents
acceptable to Senior Lender (except any contingent indemnification obligations
as to which Senior Borrower may remain obligated), (ii) the written
termination of any obligation on the part of Senior Lender
to make any further loans or to afford any other financial accommodation to
Borrower or Guarantor and (iii) the written release of all liens and
security interests created by the Senior Loan Documents. Payment shall not be
deemed to be indefeasible Payment In Full unless such payment shall have been
retained by the Senior Lender for a period of time
in excess of all applicable preference or other similar periods under
applicable bankruptcy, insolvency or creditors’ rights laws.


 


“Permitted Owner” means any Person described
in clause (C) or (D) of the definition
of “Permitted Transferee”.


 


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“Permitted Transferee” means (A) an
insurance company, bank, savings and loan association, an investment bank
having an investment grade senior debt rating from a nationally recognized
rating agency, real estate investment trust, real estate mortgage investment
conduit, trust company, commercial credit corporation, pension plan, pension
fund or pension fund advisory firm, mutual fund or other investment company,
governmental entity or plan, “qualified institutional buyer” within the meaning
of Rule 144A under the Securities Act of 1933, as amended or an
institution substantially similar to any of the foregoing (including a real
estate opportunity fund or real estate investment partnership) ; (B) any
entity wholly-owned by any one or more institutions meeting the criteria in
clause (A) (or any entity wholly owned
by such entity); and (C) any Affiliate of Junior Lender and (D) any
Person acquiring all or substantially all of the assets or business of the
Junior Lender, either directly or indirectly, through merger, acquisition,
change of control or otherwise; provided in each case (A) through (D) such entity has
at least $75,000,000 in capital/statutory surplus or shareholder’s equity and
possesses expertise in the type of real estate transactions contemplated by the
Senior Loan Documents and the Junior Loan Documents. For avoidance of doubt,
Permitted Transferee shall not include any Obligated Party or any Affiliate of
any Obligated Party.


 


“Person” means any natural person,
partnership, limited liability company, corporation, firm, association, trust,
governmental agency, or any other entity, whether acting in an individual
fiduciary or other capacity.


 


“Personal Event of Default” shall mean any
Event of Default that (i) is impossible for Junior Lender (or any other
Person) to cure because such Event of Default is of a personal nature specific
to Borrower, any Borrower Party or any Guarantor and to no other Person and (ii) does
not materially impair the value, use or operation of the Premises or the
ability of the Borrower to complete the Project or otherwise operate its
business. Without limiting the foregoing, a “Personal Event of Default” shall not
include any Event of Default which (i) is a Monetary Event of
Default or (ii) could be cured if (A) an extension of time was
granted and/or (B) Junior Lender had control over the Premises, the
Borrower or each Borrower Party; or (iii) arises out of Borrower’s failure
to maintain or procure any insurance for the Premises required under the Senior
Loan Documents; or (iv) arises out of any Insolvency Proceeding.


 


“Plan” means any plan of
reorganization, liquidating plan of reorganization, plan of liquidation, plan
of arrangement or similar plan that may be proposed by any Person in or in
connection with any Insolvency Proceeding.


 


“Plan Voting Rights” has the meaning set forth in
Section 3(d)(v) of
this Agreement.


 


“Purchase Cut-Off Time” means (i) in the case
of a judicial foreclosure of the Senior Mortgage, the entry of a judgment of
foreclosure, (ii) in the case of a non-judicial foreclosure of the Senior
Mortgage, 8:00 am (Chicago time) on  the date on which any
trustee’s sale (or other sale pursuant to a power of sale) takes place and (iii) in
the case of a Deed In Lieu, the first to occur of (x) the closing of a Deed In Lieu
and (y) the written agreement of the Senior Lender to accept any Deed In
Lieu (whether such agreement is contingent or otherwise); provided, however,
the Purchase Cut-Off Time shall not be less than thirty (30) days following
receipt by Junior Lender of notice from Senior Lender that the Senior Loan has
matured (whether by acceleration or otherwise).


 


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“Rescinded Payments” has the meaning set forth in
Section 12(b) of
this Agreement.


 


“Senior Indebtedness” shall mean all of the
present and future indebtedness owing to Senior Lender by Borrower, Guarantor
or any other Person under or in connection with the Senior Loan or the Senior
Loan Documents and the Secured Obligations (as defined in the Senior Loan
Agreement), including principal (including all protective advances), interest
(including interest at the Default Rate and any interest accruing under the
Senior Loan Documents after the commencement of any Insolvency Proceeding
irrespective of the application of Section 506(b) of the Bankruptcy
Code or any similar provision under the law applicable to such Insolvency
Proceeding to the Borrower’s obligation with respect thereto), late charges,
fees (including the application, fee, commitment fee, exit fees), collection
costs, expenses (including Senior Lender Attorneys’ Fees) and all other
amounts, liabilities and obligations of Borrower, Guarantor or any other Person
to Senior Lender, all whether fixed or contingent, matured or unmatured,
liquidated or unliquidated, and including all extensions and renewals thereof
(including any obligations owing to Senior Lender as a result of the
restructuring of the Senior Loan under any Plan that may be confirmed in any
Insolvency Proceeding or that may otherwise be received by Senior Lender in
such Insolvency Proceeding on account of the Senior Loan).


 


“Senior Lender” is defined in the
introductory paragraph to this Agreement.


 


“Senior Lender Attorneys’ Fees” shall mean
reasonable attorneys’ fees for both outside and in-house counsel (which in-house
fees shall be deemed to be within the range of fees charged by attorneys of
similar experience at medium to large sized law firms located in the City of Chicago,
Illinois).


 


“Senior Loan Collateral” shall mean all
property, rights and interests of Borrower described as collateral in the
Senior Loan Documents.


 


“Senior Loan” is defined in Recital A  to this Agreement.


 


“Senior Loan Agreement” is defined in Recital A  to this Agreement.


 


“Senior Loan Documents” shall mean all
present and future agreements, documents, and/or instruments evidencing,
documenting, securing or otherwise relating to any or all of the Senior
Indebtedness, all as the same may be amended, modified, extended, renewed,
restated from time to time, and including the Senior Loan Agreement, the Senior
Note and the Senior Mortgage.


 


“Senior Loan Purchase Price” is defined in Section 9(a) to this
Agreement.


 


“Senior Mortgage” is defined in Recital C  to this Agreement.


 


“Senior Note” is defined in Recital B  to this Agreement.


 


“Transfer” shall mean any assignment,
pledge, conveyance, sale, transfer, mortgage, encumbrance, grant of a security
interest or other disposition, either directly or indirectly, by operation of
law or otherwise.


 


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“Transfer Event of Default” has the meaning set forth in Section 7(e) of
this Agreement.


 


“UCC” shall mean the Uniform Commercial Code as
adopted in any applicable jurisdiction, as may be amended from time to time.


 


SECTION 3. Subordination.


 


(a)           Generally.
Irrespective of: (i) the time, order, manner or method of
creation, attachment or perfection of the respective security interests and/or
liens granted to Senior Lender or Junior Lender; (ii) the time or manner
of the filing of Junior Lender’s and Senior Lender’s respective financing
statements covering the Senior Loan Collateral (or any portion thereof); (iii) whether
Junior Lender or Senior Lender or any bailee or agent thereof holds possession
of any or all of the Senior Loan Collateral; (iv) the dating, execution or
delivery of any agreement, document or instrument granting Senior Lender or
Junior Lender security interests and/or liens in the Senior Loan Collateral; (v) the
giving or failure to give notice of the acquisition or expected acquisition of
any purchase money or other security interests; and (vi) any provision of
the UCC or any other applicable law to the contrary: the Junior Indebtedness,
the Junior Loan Documents, and all of Junior Lender’s claims, rights and interests
therein or arising therefrom or related thereto, are hereby subjected and
subordinated to the Senior Indebtedness, the Senior Loan Documents and all of
Senior Lender’s claims, rights and interests therein or arising therefrom or
related thereto, in all respects, including in lien, priority, right, claim,
payment and collection. Notwithstanding anything in the foregoing to the
contrary, this Agreement shall not be construed as subordinating and shall not
subordinate or impair Junior Lender’s first lien priority, right, estate and
interest in and to the Ownership Interests and Senior Lender hereby
acknowledges and agrees that Senior Lender does not have and shall not
hereafter acquire, any lien on, or any other interest whatsoever in, the
Ownership Interests, or any part thereof.


 


(b)           Payment
and Performance. So long as there has been no
indefeasible Payment In Full of the Senior Indebtedness, Junior Lender agrees
to and does hereby subordinate its claim and right to receive payment of the
Junior Indebtedness, or any part thereof, to Senior Lender’s claim and right to
receive Payment In Full of the Senior Indebtedness, and Junior Lender hereby
agrees not to accept any payment or distribution of any kind or character on
account of the Junior Indebtedness from any Person, until such time as the
Senior Indebtedness shall have been Paid in Full. Should any payment or
distribution of any kind or character be received by Junior Lender on account
of the Junior Indebtedness (including in the context of any Insolvency
Proceeding) in violation of this Agreement prior to the time all of the Senior
Indebtedness shall have been Paid In Full, Junior Lender shall be deemed to
have received the same in trust for the benefit of Senior Lender and shall
forthwith deliver the same to Senior Lender in precisely the form received
(except for the endorsement or assignment of Junior Lender where necessary) for
application against the Senior Indebtedness, whether due or not due. If Junior
Lender fails to assign or endorse any lien or payment received by Junior Lender
to Senior Lender, then Senior Lender, or any of its officers or employees, is hereby
irrevocably authorized to make such assignment or endorsement. For that
purpose, Junior Lender hereby appoints Senior Lender as its attorney in fact,
which appointment is coupled with an interest and hence irrevocable.


 


8

















 


The
provisions of this Section 3(b) shall not,
however, apply to the proceeds of any sale or participation of the Junior Indebtedness
permitted by Section 7(a) hereof.
In addition, notwithstanding the foregoing, so long as  no
Event of Default under the Senior Loan has occurred and is continuing for which
notice has been provided to Junior Lender, Junior Lender may (i) accept scheduled
monthly interest payments from Junior Borrower, paid only from any interest
reserve maintained by Junior Lender for such purpose, pursuant to the terms and
conditions set forth in the Junior Loan Documents and (ii) so long as no
Event of Default exists with respect to the Senior Loan, accept any Net Sale
Proceeds from the sale of Condominium Units in excess of the Release Price (as
defined in the Senior Loan Agreement) or Reduced Release Price (as defined in
the Senior Loan Agreement), as the case may be, payable to Senior Lender in
connection therewith.


 


(c)           Limitation on Enforcement Action. Notwithstanding
Junior Lender’s rights under applicable laws or any provision of the Junior
Loan Documents to the contrary, Junior Lender will not institute any
Enforcement Action unless or until such time as the Senior Indebtedness has
been Paid In Full, except for (i) demand for
performance under the Junior Loan Documents, (ii) seeking injunctive
relief against Junior Borrower for any breach by Junior Borrower of the Junior
Loan Documents, but not so as to cause a breach of the
Senior Loan Documents, (iii) acceleration of the Junior Loan, (iv) foreclosure
on the Ownership Interests in accordance with Paragraph 7(e) and (v) if
Junior Lender has completed foreclosure on the Ownership Interests and
satisfied the other conditions set forth in Paragraph 7(e), Junior Lender may
bring against any Guarantor any action Junior Lender is entitled to bring under
the Junior Loan Documents. Further, if Senior Lender exercises any right or
takes any remedial action pursuant to the Senior Loan Documents, Junior Lender
expressly waives for the benefit of the Senior Lender any defenses or claims it
may have as a creditor of any Obligated
Party in connection with such act by Senior Lender other than defenses or
claims predicated on a breach of this Agreement by Senior Lender or Senior
Lender’s bad faith or willful misconduct.


 


(d)           Bankruptcy;
Insolvency Proceedings. Junior Lender hereby covenants and agrees
that until the date which is ninety-one (91) days following the date on which
all of the Senior Indebtedness shall have been Paid in Full, Junior Lender will
not commence, or join in the commencement of, or otherwise cause, invoke or
solicit the commencement of, any Insolvency Proceeding against or concerning
any Obligated Party without the prior written consent of Senior Lender. In the
event any Insolvency Proceeding is commenced by or against any Obligated Party,
Senior Lender and Junior Lender agree that:


 


(i)            This Agreement
shall remain binding upon and enforceable by and against each of Junior Lender
and Senior Lender notwithstanding the commencement of such Insolvency
Proceeding or the confirmation of any Plan with respect thereto;


 


(ii)           In any Insolvency
Proceeding (whether or not Senior Lender has filed any claims therein), Junior
Lender agrees to cause any payment by, or distribution of the assets or
properties of, any Obligated Party to which Junior Lender would be entitled
except for the provisions of this Agreement, to be paid or distributed by the
Person making such payment or distribution directly to Senior Lender until the
Senior Indebtedness shall have been Paid In Full; provided, however, in the
event such payment or distribution consists of debt securities or equity securities
of the Borrower or any


 


9

















 


Borrower Party, such securities may be distributed to Junior Lender in
satisfaction in whole or in part of the Junior Indebtedness (although the
Senior Indebtedness has not been Paid In Full) so long as (A) the
rights of Junior Lender with respect to such securities are subordinate to the
payment in full, in cash, of the Senior Indebtedness, and (B) any payments
or distributions to be made to Junior Lender on account of such securities
shall be paid by Junior Lender to Senior Lender pursuant to and in accordance
with this Agreement.


 


(iii)          With respect to any
Insolvency Proceeding in which the Senior Lender has or has a right to file any
claims: Junior Lender shall not file a motion for, or otherwise seek, relief
from the automatic stay imposed in such Insolvency Proceeding, without the
prior written consent of the Senior Lender, and Junior Lender shall not oppose
any motion or other request made by Senior Lender for relief from the automatic
stay;


 


(iv)          With respect to any
Insolvency Proceeding in which the Senior Lender has or has a right to file
any claims: Junior Lender shall vote any and all claims it may have to accept
or reject a Plan (“Plan Voting
Rights”) as may be directed by Senior
Lender in its sole discretion. Any such direction shall be provided by Senior
Lender to Junior Lender in writing at least five (5)  Business Days prior to the deadline established in the
Insolvency Proceeding for the submission of votes with respect to the Plan. In
the event no such direction is provided by Senior Lender to Junior Lender
within such time, Junior Lender may exercise its Plan Voting Rights as it may
determine in its discretion. In furtherance of the rights granted to Senior Lender
herein, Junior Lender hereby grants to Senior Lender a power of
attorney to exercise the Plan Voting Rights for, on behalf of and in the name
of the Junior Lender. The power of attorney granted by Junior Lender to Senior
Lender hereunder is acknowledged by Junior
Lender and Senior Lender to be coupled with an interest and shall be
irrevocable. Junior Lender further grants and assigns to Senior Lender a
beneficial interest in the Junior Lender’s claims solely for the purpose and to
the extent required to vest in Senior Lender an interest in the Junior
Lender’s claims sufficient under applicable provisions of the Bankruptcy Code
to enable Senior Lender to direct Junior Lender to exercise the Plan Voting
Rights as provided herein.


 


(v)           With respect to any
Insolvency Proceeding in which the Senior Lender has or has a right to file any
claims: without the prior written consent of the Senior Lender, Junior Lender
shall not take any action, or support any action, or solicit any person or
entity to take any action, in the Insolvency Proceeding, to the extent such
Insolvency Proceeding is a case commenced under chapter 11 of the Bankruptcy
Code, to obtain the appointment of a chapter 11 trustee or examiner or to
convert such case to a case under chapter 7 of the Bankruptcy Code and will not
take any action to oppose any such action or request taken or made by Senior
Lender seeking such appointment or conversion;


 


(vi)          With respect to any
Insolvency Proceeding in which the Senior Lender has or has a right to file any
claims: Junior Lender shall not object to, or otherwise oppose or support the
opposition to, any agreement or stipulation by or


 


10
















 


between
Senior Lender and the Obligated Party that (i) authorizes the use by such
Obligated Party, during the pendency of an Insolvency Proceeding, of the Senior
Loan Collateral or the Cash Collateral, or (ii) that provides to Senior
Lender adequate protection of its interest in the Senior Loan Collateral or the
Cash Collateral. Further, Junior Lender shall not take any action in support of
any motion or similar request by the Obligated Party to use the Senior Loan
Collateral or the Cash Collateral over an objection by Senior Lender that its
interest in such Senior Loan Collateral or Cash Collateral is not, or will not
be, adequately protected. Notwithstanding the foregoing, nothing contained
herein shall prohibit Junior Lender from seeking or obtaining adequate
protection of its interests in and to the Senior Loan Collateral and the Cash
Collateral provided that (x) such adequate protection is in the form of
replacement liens or other liens or similar interests or rights in property
that, as granted to Junior Lender, are in all respects junior and subordinate
to the liens and similar rights held by or granted to
Senior Lender in such property, and (y) to the extent such adequate
protection includes any payment of any kind or nature to be made to Junior
Lender as adequate protection of its interests in the Senior Loan Collateral or
the Cash Collateral, such payment shall be subject to the terms of, and payable
to Senior Lender in accordance with, this Agreement; and


 


(vii)         With respect to any
Insolvency Proceeding in which the Senior Lender has or has a right to file any
claims: Junior Lender shall not, without the prior written consent of Senior
Lender, make or agree to make any debtor-in-possession loan to any Obligated
Party unless Junior Lender’s claims with respect thereto, including any liens
or security interest granted by such Obligated Party in connection therewith,
are junior and subordinate in all respects to the Senior Indebtedness and to
any liens or security interests held by Senior Lender with respect thereto.


 


(e)           Approval
of Senior Loan Documents. Attached as Exhibit B  hereto is a list of Senior
Loan Documents. Junior Lender acknowledges that it has received and reviewed
and, subject to the terms and conditions of this Agreement, including Section l2(d) hereof, hereby
consents to the terms and provisions of the Senior Loan Documents and the
execution, delivery, performance and observance thereof.


 


(f)            Approval of Junior Loan Documents. Attached as Exhibit C  hereto is a list of
Junior Loan Documents. Senior Lender consents to the terms and provisions of
the Junior Loan Documents and the execution, delivery, performance and
observance thereof.


 


(g)           Accounts. So long as the Senior
Indebtedness has not been Paid In Full, Junior Lender shall not obtain a
security interest or lien on any of the Accounts.


 


(h)           Miscellaneous.
At Senior Lender’s option, this Agreement may be recorded
concurrently with the execution and delivery hereof. In order to further notify
third parties of the existence of this Agreement, the Junior Note and the
Junior Pledge (and any other document which purports to create a security
interest in the Senior Loan Collateral in favor of the Junior Lender, if any,
and in each financing statement filed in connection therewith) shall, at all
times, contain a legend on the first page in bold type, no smaller than
14-point in size, stating “THIS INSTRUMENT,
AND THE RIGHTS OF ANY HOLDER OF THIS INSTRUMENT TO PAYMENTS AND PERFORMANCE HEREUNDER, AND


 


11

















 


CERTAIN OTHER RIGHTS RELATING THERETO, ARE  SUBJECT TO THE PROVISIONS OF THAT CERTAIN SUBORDINATION AND INTERCREDITOR AGREEMENT DATED MARCH     , 2006 BETWEEN CORUS BANK, N.A., A
NATIONAL BANKING ASSOCIATION, ITS SUCCESSORS AND  ASSIGNS, IN ITS CAPACITY AS THE SENIOR LENDER, AND MTRY FUNDING, LLC, A
DELAWARE LIMITED LIABILITY COMPANY, IN ITS CAPACITY AS THE JUNIOR LENDER.”


 


SECTION 4.  Insurance Proceeds;
Condemnation Awards. The Junior Lender hereby assigns and releases
the following unto the Senior Lender for so long as any of the Senior
Indebtedness has not been Paid In Full:


 


(a)           Insurance Proceeds. All of the Junior
Lender’s right, title, interest or claim, if any, in and to the proceeds of all
policies of insurance covering the Premises, or any part thereof, for
application to the Senior Indebtedness or for other disposition thereof in
accordance with the terms, conditions and provisions of the Senior Loan
Documents.


 


(b)           Condemnation Awards. All of the Junior
Lender’s right, title, interest or claim, if any, in and to all awards or other
compensation made for any taking or condemnation of any part of the Premises,
or any part thereof, for application to the Senior Indebtedness or for other
disposition thereof in accordance with the terms, conditions and provisions of
the Senior Loan Documents.


 


(c)           Adjustments and Settlements. Unless Senior
Lender shall agree in writing to the contrary, Junior Lender shall not have any
right to adjust or settle, or to participate in any adjustment or settlement of, any loss or
taking of the Premises or any part thereof and Junior Lender hereby assigns to
Senior Lender any right to adjust, settle or participate in any adjustment or
settlement of, any such loss or taking. Notwithstanding the foregoing, in the
event of a casualty or condemnation, Senior Lender shall make the insurance
proceeds or condemnation or taking award from any such event available to the
Borrower in order to repair and restore the Premises to the extent the Senior
Lender is required to do so in accordance with the provisions of the Senior
Loan Documents. To the extent that the Senior Loan Documents require the Senior
Lender to make such insurance proceeds or any condemnation or taking award
available to Borrower to repair and restore the Premises, or Senior Lender
otherwise agrees to permit Borrower to use insurance proceeds or any
condemnation or taking award to repair and restore the Premises, Junior Lender
shall be deemed to have agreed thereto and Junior Lender shall execute any and
all documents as may be reasonably necessary to evidence that consent and
agreement and the other provisions of this Section 4.


 


(d)           Excess
Proceeds. If, following any application or
disposition of insurance proceeds or condemnation or taking awards, the Senior
Indebtedness has been Paid In Full, and any balance of such proceeds, award or
other Compensation remains, then to the extent provided for in the Junior Loan
Documents, such balance shall be payable to the Borrower (or the Junior Lender
if the Junior Loan Documents so provide). Junior Lender may be named as loss
payee on Borrower’s property insurance policies in a manner which indicates
Junior Lender’s interest in such insurance proceeds is subordinate to the
interests of the Senior Lender.


 


12

















 


SECTION 5. Certain Actions.


 


(a)            Escrows;
Reserves. Junior Lender hereby agrees that so long as any of the
Senior Indebtedness has not been Paid In Full, Junior Lender shall not, without
Senior Lender’s prior written consent, collect payments from Borrower for the
purpose of escrowing taxes, assessments or other charges imposed on the Project
or for creating, funding or maintaining any reserves with respect to the
Premises or the operation thereof or for insurance policies required under the
Senior Loan Documents or the Junior Loan Documents. Nothing herein is intended
to prevent Junior Lender from advancing the proceeds of the Junior Loan for
such purposes to the extent such advances are contemplated by the Junior Loan
Documents.


 


SECTION 6.  Prohibition of Subsequent
Acquisition of Rights. The Junior Lender shall not
hereafter acquire, by subrogation, contract or otherwise, any lien upon or
other estate, right or interest in the Senior Loan Collateral or any other
property of the Borrower (including any such lien, estate, right or interest
that may arise with respect to real estate taxes, assessments or other
governmental charges) or any rents or revenues therefrom that is or may be
prior in right to or on parity with the Senior Loan Documents.


 


SECTION 7.  Junior Indebtedness.


 


(a)           Limitation
on Transfer. Without the prior written consent of Senior Lender,
so long as the Senior Indebtedness has not been Paid In Full, (i) Junior
Lender shall not Transfer any or all of the Junior Indebtedness or any portion
thereof or interest therein or any of the Junior Loan Documents other than to a
Permitted Transferee and (ii) the members of Junior Lender shall not
Transfer a controlling interest in Junior Lender other than to a Permitted Transferee; provided, that following disbursement of the
full amount of the Junior Loan to or for the benefit of Borrower, Junior Lender
may grant participations of up to forty-nine percent (49%) of the Junior
Indebtedness without the consent of Senior Lender, if following the granting of
any such participations, Junior Lender retains complete control of all
decisions respecting the Junior Loan Documents. For greater certainty, any and
all discretion, waiver, consent or approval to be exercised, granted, provided
or made by Junior Lender pursuant to the Junior Loan Documents, or any
amendment, modification or supplement thereto (whether written or oral), or any
decision to enforce or forbear from enforcing shall be exercised, made,
approved, granted or withheld, executed, or continued to be exercised, made,
granted or withheld, in Junior Lender’s sole and absolute discretion without
the approval or consent of any participant. Junior Lender shall retain at least
fifty-one percent (51%) of the Junior Indebtedness.
Junior Lender shall provide Senior Lender prompt notice of any
participation or other Transfer and any participation agreement shall provide
that it is subject to the term and provisions of this Agreement. Any attempted
Transfer in contravention of the foregoing restrictions
shall be void and Junior Lender shall indemnify, protect, defend and hold
Senior Lender harmless from and against all losses, claims, costs (including
Senior Lender’s Attorneys’ Fees and court costs) and damages incurred by Senior
Lender by reason of any Transfer made or attempted in contravention of this Agreement.
Any Permitted Transferee of all or any portion of the Junior Loan must assume
in writing the obligations of Junior Lender hereunder and agree to be bound by
the terms and provisions hereof and shall remake each of the representations
and warranties contained herein with respect to the authority of the Junior
Lender for the benefit of Senior


 


13

















 


Lender, and any Transfer of
the Junior Loan made without such assumption shall be void and of no effect.


 


(b)           Limitation
on Amendments. So long as any portion of the
Senior Indebtedness has not been Paid In Full, without the prior written
consent of Senior Lender, Junior Lender will not amend or modify the Junior
Indebtedness or the Junior Loan Documents in any way that will: (A) increase the maximum
principal amount of the Junior Loan or increase the rate of interest currently
set forth in the Junior Loan Documents, (B) increase the
amount or number of payments required by the Junior Loan Documents, (C) cross-default
the Junior Indebtedness with any loan other than the Senior Loan, (D) cross-collateralize
the Junior Indebtedness with any other loan, (E) add additional
default provisions to any of the Junior Loan Documents or delete or shorten
existing notice, grace and cure periods for any default, (F) shorten the
maturity of the Junior Loan, or (G) extend the
period during which voluntary prepayments are prohibited or during which prepayments
require the payment of a prepayment fee or premium or yield maintenance charge
or increase the amount of any such prepayment fee, premium or yield maintenance
charge. Nothing herein is intended to prohibit the Junior Lender from doing any
of the foregoing, including making protective advances, to the extent provided
in the existing Junior Loan Documents, it being understood that the foregoing
limitations are only intended to limit the ability of the Junior Lender to
alter the terms of the existing Junior Loan Documents after the date hereof.
Junior Lender shall deliver to Senior Lender copies of any and all
modifications, amendments, extensions, consolidations, spreaders, restatements,
alterations, changes or revisions to any one or more of the Junior Loan
Documents (including any side letters, waivers or consents entered into,
executed or delivered by Junior Lender) within a reasonable time after any of
such applicable instruments have been executed by Junior Lender, provided that
the failure of the Junior Lender to provide the same to Senior Lender shall not
affect any of Senior Lender’s obligations or Junior Lender’s rights hereunder
or make the Junior Lender liable for damages to Senior Lender on account of
such failure.


 


(c)           Representations.
Junior Lender hereby represents and warrants to Senior Lender that:


 


(i)            To Junior Lender’s
knowledge, there exists under the Junior Loan Documents no default, event of
default or circumstance or state of facts that, with the giving of notice or
the passage of time or both could constitute such a default or event of default
thereunder.


 


(ii)           Junior Lender is
the legal and beneficial owner of the entire Junior Loan free and clear of any
lien, security interest, option or other charge or encumbrance.


 


(iii)          There are no conditions
precedent to the effectiveness of this Agreement
that have not been satisfied or waived.


 


(iv)          The original maximum
principal amount of the Junior Indebtedness is $8,700,000.


 


(v)           Junior Lender has
the power, authority and legal right to execute, deliver and perform this
Agreement. This Agreement has been duly authorized by all


 


14

















 


necessary
action of Junior Lender, duly executed and delivered by Junior Lender and
constitutes the valid and binding obligation of Junior Lender enforceable
against Junior Lender in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting rights of creditors
generally, and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is
sought in a proceeding in equity or at law).


 


(vi)          Neither the
execution, delivery or performance by Junior Lender of this Agreement nor
compliance by it with the terms and provisions hereof: (A) will contravene
any provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (B) will conflict
or be inconsistent with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any lien upon
any of the property or assets of Junior Lender
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement, loan agreement, partnership agreement or any other agreement,
contract or instrument to which Junior Lender is a party or by which it or any
of its property or assets is bound or to which it may be subject, or (C) will violate
any provision of the organizational documents of Junior Lender.


 


(vii)         No order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with (except as have been obtained or made prior to the date
hereof), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with (A) the execution, delivery and performance by Junior Lender of this
Agreement or (B) the legality, validity,
binding effect or enforceability of this Agreement with respect to Junior
Lender.


 


(viii)        Junior Lender
entered into the transactions contemplated by the Junior Loan Documents and
made the Junior Indebtedness without reliance upon any information or advice from
Senior Lender. Junior Lender made its own underwriting analysis in connection
with the Junior Indebtedness, its own credit review and investigated all
matters which Junior Lender deemed pertinent thereto.


 


(ix)           The Junior Loan is
not cross-defaulted with any loan other than the Senior Loan and is not
cross-collateralized with any other loan.


 


(x)            At Closing, the
Junior Loan was funded entirely from the Stillwater Hedge Fund.


 


(d)           Junior
Lender Default Notice. Junior Lender shall copy Senior Lender on all
written notices sent to any Obligated Party at the address for Senior Lender
specified in Section 12(a) below
with respect to any default, event of default or acceleration under the Junior
Loan Documents and shall send such notices at the same time and in the same manner
delivered to such Obligated Party.


 


15

















 


(e)           Exercise
of Remedies under the Junior Loan. Subject to the terms and
provisions of the Junior Loan Documents, Junior Lender shall have the right,
without such actions constituting an independent basis for a Default or Event of Default under
the Senior Loan Documents, to do the following upon an event of default under
the Junior Loan Documents: (i) accelerate payment of the Junior Loan and
exercise its rights under the Junior Pledge and succeed (or cause a Permitted
Owner to succeed) to the Ownership Interests, or (ii) accept (or cause a Permitted Owner
to accept) an assignment of Ownership Interests in lieu of foreclosure, so long
as prior to the acquisition of the Ownership Interests by Junior Lender (or
Permitted Owner): (A) Junior Lender (or such Permitted Owner) has cured
all Monetary Events of Default under the Senior Loan Documents and (B) an
individual or entity (affiliated with Junior Lender or such Permitted Owner),
with assets and liquidity equal to or greater than the assets and liquidity of
the Guarantors as of the date of the closing of the Senior Loan, reasonably
acceptable to Senior Lender has executed and delivered to Senior Lender a
completion and non-recourse carveout guaranty prepared in reasonable form by
Senior Lender’s counsel covering the same matters as are covered by that
certain Completion and Non-Recourse Carveout Guaranty executed by the
Guarantors and which is one of the Senior Loan Documents, together with
evidence reasonably acceptable to Senior Lender of the existence, good standing
and due authorization of the entity executing such completion and non-recourse
guaranty. Junior Lender acknowledges and agrees that, in the event that Junior
Lender (or such Permitted Owner) succeeds to any of the Ownership Interests,
the Senior Loan shall continue to be an obligation of Borrower pursuant to the
terms of the Senior Loan Documents, but the Senior Loan Documents shall be
deemed amended to provide that Junior Lender (or such Permitted Owner) shall
not be entitled to transfer (directly or indirectly) the Ownership Interests
without the consent of the Senior Lender except to a Permitted Owner. The
Junior Lender acknowledges that, but for the provisions of this Section 7(e), the acquisition of
such Ownership Interests by the Junior Lender or Permitted Owner would
constitute an Event of Default under the Senior Loan Documents (a “Transfer Event of Default”). Nothing in this Section 7(e) is intended to
limit or waive any right or remedy of Senior Lender under the Senior Loan
Documents with respect to any Default or Event of Default which may exist under
the Senior Loan Documents other than the aforesaid Transfer Event of Default,
and the ability of the Junior Lender (or Permitted Owner) to cure such other
Defaults or Events of Default, and the obligation of Senior Lender to accept
such cure, are limited as set forth in Sections
8(e) and (f)  hereof.


 


SECTION 8.  Senior Indebtedness


 


(a)            No Limitation on Transfer. Senior Lender
may Transfer any or all of the Senior Indebtedness or any portion thereof or
interest or participation therein. Any transferee (other than a loan
participant) of all or any portion of the Senior Loan must assume in writing
the obligations of Senior Lender hereunder and agree to be bound by the terms
and provisions hereof and shall remake each of the representations and
warranties contained herein with respect to the authority of the Senior Lender
for the benefit of Junior Lender.


 


(b)            Limitation
on Amendments. Senior Lender may at any time, and from time to time,
without the consent of or notice to Junior Lender and without incurring
liability or responsibility to Junior Lender and without impairing or releasing
any of Senior Lender’s rights hereunder, (i) alter the terms of the Senior
Loan Documents or any other instrument or agreement in
any way relating to the Senior Loan; (ii) sell, exchange, release or
otherwise deal


 


16

















 


with
all or any part of any property at any time securing payment of the Senior
Indebtedness; (iii) release anyone liable in any manner for the payment or
collection of the Senior Indebtedness or any portion thereof; (iv) exercise
or refrain from exercising any right against Borrower, any Obligated Party or
others (including Junior Lender); (v) apply any sums received by Senior
Lender, by whomsoever paid and however realized, to the Senior Indebtedness in
such manner as Senior Lender shall deem appropriate or (vi) waive any
right or remedy of Senior Lender or any obligation of any other Person to
Senior Lender; provided, however, that notwithstanding the foregoing, Senior
Lender shall not, without Junior Lender’s prior written consent: (A) increase
the maximum principal amount of the Senior Loan or increase the rate of
interest currently set forth in the Senior Loan Documents, (B) increase
the amount or number of payments required by the Senior Loan Documents, (C) cross-default
the Senior Indebtedness with any other loan, (D) cross-collateralize
the Senior Indebtedness with any other loan, (E) add additional
default provisions to any of the Senior Loan Documents or delete or shorten
existing notice, grace and cure periods for any default, (F) shorten the
maturity date of the Senior Loan, (G) extend the
period during which voluntary prepayments are prohibited or during which
prepayments require the payment of a prepayment fee or premium or yield
maintenance charge or increase the amount of any such prepayment fee, premium
or yield maintenance charge, or (H) materially
modify the definition of Release Price in the Senior Loan Agreement or consent
to the reduction of any Minimum List Price in excess of seventeen percent
(17%). Nothing herein is intended to prohibit the Senior Lender from doing any
of the foregoing, including making protective advances, to the extent provided
in the existing Senior Loan Documents, it being understood that the foregoing
limitations are only intended to limit the ability of the Senior Lender to
alter the terms of the existing Senior Loan Documents. Senior Lender shall
deliver to Junior Lender copies of any and all modifications, amendments,
extensions, consolidations, spreaders, restatements, alterations, changes or
revisions to any one or more of the Senior Loan Documents (including any side
letters, waivers or consents entered into, executed or delivered by Senior
Lender) within a reasonable time after any of such applicable
instruments have been executed by Senior Lender, provided that the failure of
the Senior Lender to provide the same to Junior Lender shall not affect any of
Junior Lender’s obligations or Senior Lender’s rights hereunder or make the
Senior Lender liable for damages to Junior Lender on account of such failure. No consent of Junior
Lender is required for the release of Units in accordance with the Senior Loan
Documents, and Junior Lender agrees not to interfere with any such release.


 


(c)           Representations.
Senior Lender hereby represents and warrants to Junior Lender that:


 


(i)            To Senior Lender’s
knowledge, there exists under the Senior Loan Documents no default, event of default or
circumstance or state of facts that, with the giving of notice or the passage
of time or both could constitute such a default or event of default thereunder;


 


(ii)           Senior Lender is
the legal and beneficial owner of the entire Senior Loan free and clear of any
lien, security interest, option or other charge or encumbrance.


 


(iii)          There are no conditions
precedent to the effectiveness of this Agreement
that have not been satisfied or waived.


 


17

















 


(iv)          The maximum
principal amount of the Senior Indebtedness is $69,000,000;


 


(v)           Senior Lender has
the power, authority and legal right to execute, deliver and perform this
Agreement. This Agreement has been duly authorized by all necessary action of
Senior Lender, duly executed and delivered by Senior Lender and constitutes the
valid and binding obligation of Senior Lender enforceable against Senior Lender
in accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting rights of creditors generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at
law);


 


(vi)          Neither the
execution, delivery or performance by Senior Lender of this Agreement
nor compliance by it with the terms and provisions hereof: (A) will contravene
any provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (B) will
conflict or be inconsistent with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the
obligation to create or impose) any
lien upon any of the property or assets of Senior Lender pursuant to
the terms of any indenture, mortgage, deed of trust, credit agreement, loan
agreement, partnership agreement or any other agreement, contract or instrument
to which Senior Lender is a party or by which it or any of its property or
assets is bound or to which it may be subject, or (C) will violate any
provision of the organizational documents of Senior Lender;


 


(vii)         No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made prior to the date hereof), or exemption
by, any governmental or public body or authority, or any subdivision thereof,
is required to authorize, or is required in connection with (A) the
execution, delivery and performance by Senior Lender
of this Agreement or (B) the legality, validity, binding effect or
enforceability of this Agreement with respect to Senior Lender;


 


(viii)        Senior Lender
entered into the transactions contemplated by the Senior Loan Documents and
made the Senior Indebtedness without reliance upon any information or advice
from Junior Lender. Senior Lender made its own underwriting analysis in
connection with the Senior Indebtedness, its own credit review of Borrower and
investigated all matters which Senior Lender deemed pertinent thereto.


 


(ix)           The Senior Loan is
not cross-defaulted or cross-collateralized with any other loan.


 


(d)           Senior
Lender Default Notices. Senior Lender shall copy Junior Lender on
all written notices sent to Borrower (including notices relating to foreclosure
of Senior Lender’s security) at the address for Junior Lender specified in Section 12(a) below with
respect to any Default or Event of Default under the Senior Loan Agreement and
shall send such notices at the same time and in the same manner of delivery in
which they are delivered to Borrower.


 


18

















 


(e)           Exercise
of Remedies Under Senior Loan; Junior Lender’s Cure Rights.


 


(i)            Except as expressly
set forth in Section 7(e),
this Section 8(e) or
Section 8(f) of this
Agreement, nothing in this Agreement is intended to limit, restrict or impair
the rights and remedies of Senior Lender in respect of any Default or Event of
Default under the Senior Loan Documents.


 


(ii)           Junior Lender shall
have the right (but not the obligation) to cure any Monetary Event of Default
under the Senior Loan Documents at any time prior to or within nineteen (19) days after the
later of (x) the expiration of any applicable grace or cure period
provided in the Senior Loan Documents and (y) the date that Junior Lender
receives written notice from Senior Lender of such Monetary Event of Default
(and Senior Lender consents to the Junior Indebtedness including amounts
advanced by Junior Lender to cure defaults with respect to the Senior Loan).


 


(iii)          Junior Lender shall
also have the right (but not the obligation) to cure any Non-Monetary Event of
Default under the Senior Loan Documents at any time prior to or within
forty-five (45) days after the later of (x) the expiration
of the applicable grace or cure period provided in the Senior Loan Documents
and (y) the date that Junior Lender receives written notice from Senior Lender
of such Event of Default (the “Initial Cure Period”), so long as during
such Initial Cure Period Junior Lender is timely satisfying (or causing to be
timely satisfied) all Monetary Events of Default within the period specified
above in Section 8(e)(ii).  Notwithstanding
the foregoing, if a Curable Non-Monetary Event of Default cannot reasonably be
cured by Junior Lender within the Initial Cure Period or in the case of any
Personal Event of Default, then provided that (A) Junior Lender
is timely curing (or causing to be timely cured) all other Monetary Events of
Default and Non-Monetary Events of Default within the applicable times set
forth above in Section 8(e)(ii) and
the first sentence of this Section 8(e)(iii),
and (B) Junior Lender commences to exercise its remedies under the
Junior Pledge in accordance with Section 7(e) hereof and notifies
Senior Lender of the same within thirty (30) days after
expiration of the Initial Cure Period, and (C) Junior Lender
thereafter diligently pursues such proceedings to conclusion, acquires the
Ownership Interests and cures any such Curable Non-Monetary Event of Default as
soon as reasonably practicable, Junior Lender shall be given such reasonable
period of time after the Initial Cure Period to accomplish such cure, but in no
event shall such period extend beyond the earlier of (x) ninety (90) days after the
Initial Cure Period and (y) the maturity date of the Senior Loan (as the
same may have then been extended as set forth in the Senior Loan Documents).
Upon the acquisition of the Ownership Interests by the Junior Lender in
compliance with this Agreement and the cure of all Monetary Events of Default
and Non-Monetary Events of Default (other than Personal Events of Default)
within the time hereinabove required, all then existing Personal Events of
Default shall be deemed waived for the benefit of the newly reconstituted
Borrower.


 


(f)            Standstill.   In order to eliminate any
uncertainty, Senior Lender and Junior Lender acknowledge and agree that,
subject to the last sentence of this Section 8(f),  as long as Junior
Lender observes and performs its obligations under this Agreement, Senior
Lender


 


19
















 


will not commence any action
or proceeding to foreclose the Mortgage (or accept a Deed in Lieu) or
accelerate the Loan in connection with any Event of Default under the Senior
Loan (other than as a result of an Insolvency Proceeding) during any period in which
Junior Lender has (and continues to have) the right to cure such Event of
Default under the provisions of Section 8(e);
provided, however, (i) nothing herein shall prevent the Senior Lender
from exercising any right or remedy under the Senior Loan Documents (including
making protective advances) other than any action or proceeding to foreclose
the Mortgage or accelerate the Loan (other than as a result of an
Insolvency Proceeding); and (ii) from and after an Event of Default under
the Senior Loan Documents (and without regard to Junior Lender’s cure rights
under Section (8e)), Senior
Lender shall have the right to charge and collect interest on the outstanding
balance of the Senior Loan at the Default Rate. Notwithstanding anything in
this Section 8(f) to the
contrary, Senior Lender shall be entitled to take any action (including
commencing any action or proceeding to realize on its collateral under the
Senior Loan Documents and/or accelerating the Loan) if such action is required
to preserve, or prevent the loss of, Senior Lender’s first, prior perfected
security interest in, and lien on, the Senior Loan Collateral.


 


(g)            Where Notice Prohibited.  With respect to any Default which
requires the giving of notice before becoming an Event of Default under the
Senior Loan Documents, if Senior Lender is prevented or prohibited under
applicable laws from giving such notice to the Borrower, then for purposes of
determining any cure period available to Junior Lender hereunder (i.e., in
cases where the detemination of the Junior Lender cure period requires a determination
as to the expiration of the applicable grace or cure period provided in the
Senior Loan Documents), such notice as is required under the Senior Loan
Documents shall be deemed to have been given at the time notice of such Default
is given to Junior Lender.


 


SECTION 9.  Option to
Purchase Senior Loan.


 


(a)            Right to Purchase After Acceleration.  If an Event of Default under the
Senior Loan exists and Senior Lender has accelerated the Senior Loan, the Junior
Lender, or any Permitted Owner it shall designate, shall have the right to
purchase Senior Lender’s interest under the Senior Loan Documents for a
purchase price equal to the outstanding principal balance of the Senior Loan as of the Closing Date plus any accrued but unpaid interest (including
interest at the Default Rate), and all other amounts due under the Senior Loan
Documents through the Closing Date, including Senior Lender Attorneys’ Fees,
court costs and other costs of enforcement, any late charges, prepayment fees
or premiums (as if such Senior Indebtedness was being prepaid by Borrower under
the Senior Loan Documents) and any unpaid portion of the Exit Fee
(collectively, the “Senior Loan Purchase
Price”).


 


(b)            Closing
of Purchase of Senior Loan.  Upon
the Closing Date, Senior Lender shall sell and deliver the Senior Loan
Documents and the Senior Loan to Junior Lender (or its designated Permitted
Owner), without recourse, representation or warranty (other than
representations and warranties, that, to Senior Lender’s actual knowledge, as
of such Closing Date (a) there are no documents evidencing or securing the
Senior Loan other than as disclosed in writing to Junior Lender, (b) the
outstanding principal balance and accrued interest due on the Senior Loan, (c) the
Senior Loan has not been encumbered or pledged by Senior Lender and (d) other
than as disclosed in writing to Junior Lender, the Senior Loan has not been
assigned or participated by Senior Lender).


 


20

















 


(c)           Expiration.
 The purchase option granted
in this Section 9 shall expire unless (i) such option is
exercised by written notice to Senior Lender and (ii) the Senior Loan
Purchase Price is tendered to Senior Lender (subject only to satisfaction of
subparagraph (b) above) prior to the Purchase Cut-Off Time.


 


SECTION 10.               Deed in Lieu: No Merger.  If Senior Lender, or Senior
Lender’s assignee or designee, accepts a deed or other conveyance from Borrower
affecting Borrower’s interest in the Senior Loan Collateral (or a portion of
such interest), in lieu of such Senior Lender’s exercise of remedies under the
Senior Loan Documents (a “Deed In Lieu”),  then there shall be no
merger between the estate arising under the Senior Loan Documents and the
estate conveyed or assigned by such Deed in Lieu. The interests of Senior
Lender (or its assignee or designee) as holder of the Senior Loan Documents and
holder of the estate transferred by the Deed in Lieu shall remain forever
separate and distinct except to the extent that Senior Lender (or its assignee
or designee) agrees in writing to the contrary. Notwithstanding anything to the
contrary contained in this Agreement, if Senior Lender accepts a Deed in Lieu,
then if requested by Senior Lender, Junior Lender shall promptly deliver to
Senior Lender a fully executed release(s) of any document which purports
to create a security interest in the Senior Loan Collateral in favor of the Junior
Lender, if any, including, without limitation, each financing statement filed
in connection therewith, in proper form for recording or filing, together with
a letter of direction authorizing Senior Lender to record/file such release(s).
Senior Lender shall not accept a Deed in Lieu, except after having provided
Junior Lender with not less than thirty (30) days’ prior written notice.


 


SECTION 11.               Estoppel
Certificates.


 


(a)           Senior
Loan.  Senior Lender hereby
agrees that, within ten (10) Business Days after demand
of Junior Lender, it shall execute and deliver a certification setting forth,
to Senior Lender’s actual knowledge (i) the total outstanding balance of
the Senior Indebtedness, itemized to show the components thereof, (ii) that
there are no material defaults under the Senior Loan Documents or, if defaults
have occurred and are continuing, describing such defaults, (iii) that
there are no material defaults under this Agreement or, if defaults have
occurred and are continuing, describing such defaults, and (iv) that this
Agreement remains in full force and effect, and any and all such certifications
shall be conclusive as to the matters set forth therein, and shall be fully
binding upon Senior Lender and its successors and assigns.


 


(b)           Junior
Loan.  Junior Lender hereby
agrees that, within ten (10) Business Days after demand of Senior Lender,
it shall execute and deliver a certification setting forth to Junior Lender’s
actual knowledge (i) the total outstanding balance of the Junior
Indebtedness, itemized to show the components thereof, (ii) that there are
no material defaults under the Junior Loan Documents or, if defaults have
occurred and are continuing, describing such defaults, (iii) that there
are no material defaults under this Agreement or, if defaults have occurred and
are continuing, describing such defaults, and (iv) that this Agreement
remains in full force and effect, and any and all such certifications shall be
conclusive as to the matters set forth therein, and shall be fully binding upon
Junior Lender and its successors and assigns.


 


21

















 


SECTION 12.               Miscellaneous Provisions.


 


(a)           Notices.
 Any notice, demand, request
or other communication which any party hereto may be required or may desire to
give hereunder shall be in writing, addressed as follows and shall be deemed to
have been properly given if hand delivered, if sent by reputable overnight
courier for next Business Day delivery (effective the Business Day following
delivery to such courier), if sent by telecopy with confirmation of receipt and
a hard copy mailed in accordance with the provisions of this Section 12(a) (effective the
Business Day following receipt of confirmation of receipt) or if
mailed (effective two Business Days after mailing) by United States
registered or certified mail, postage prepaid, return receipt requested:


 


	
  If
  to Senior Lender:

  	
  CORUS Bank, N.A.

  
	
   

  	
  3959 N. Lincoln Avenue

  
	
   

  	
  Chicago, Illinois 60613

  
	
   

  	
  Attention:

  	
  Chris Barkidjija

  
	
   

  	
  Telephone:

  	
  (773) 832-3555

  
	
   

  	
  Fax:

  	
  (773) 832-3540

  
	
   

  	
   

  	
   

  
	
  with
  a copy to:

  	
  CORUS Bank, N.A.

  
	
   

  	
  3959 North Lincoln Avenue

  
	
   

  	
  Chicago, Illinois 60613

  
	
   

  	
  Attention:

  	
  Joel C. Solomon

  
	
   

  	
  Telephone:

  	
  (773) 832-3526

  
	
   

  	
  Fax:

  	
  (773) 832-3626

  
	
   

  	
   

  	
   

  
	
  with
  a copy to:

  	
  Jones Day

  
	
   

  	
  1420 Peachtree Street, N.E.

  
	
   

  	
  Suite 800

  
	
   

  	
  Atlanta, Georgia 30309-3053

  
	
   

  	
  Attention:

  	
  Tracy S. Plott, Esq.

  
	
   

  	
  Telephone:

  	
  (404) 581-8582

  
	
   

  	
  Fax:

  	
  (404) 581-8330

  
	
   

  	
   

  	
   

  
	
  If
  to Junior Lender:

  	
  MTRY Funding, LLC

  
	
   

  	
  c/o Stillwater Capital Partners

  
	
   

  	
  41 Madison Avenue

  
	
   

  	
  New York, New York 10010

  
	
   

  	
  Attention:

  	
  Richard Rudy

  
	
   

  	
  Telephone:

  	
  (212) 629-7866, ext. 13

  
	
   

  	
  Fax:

  	
  (212) 244-3707

  
	
   

  	
   

  	
   

  
	
  with
  a copy to:

  	
  JPS Capital Partners, LLC

  
	
   

  	
  1185 Avenue of the Americas, 14th Floor

  
	
   

  	
  New York, New York 10036

  
	
   

  	
  Attention:

  	
  Stuart Gruskin

  
	
   

  	
  Telephone:

  	
  (212) 790-6729

  
	
   

  	
  Fax:

  	
  (212) 790-6790

  



 


22

















 


	
  and
  a copy to:

  	
  Thompson &  Knight LLP

  
	
   

  	
  1700 Pacific Avenue

  
	
   

  	
  Suite 3300

  
	
   

  	
  Dallas, Texas

  	
  75201

  
	
   

  	
  Attention:

  	
  Mark M. Sloan

  
	
   

  	
  Telephone:

  	
  (214) 969-1574

  
	
   

  	
  Fax:

  	
  (214) 999-9143

  



 


(b)           Continuing Validity; Rescinded Payments.  Subject to the last sentence in
this Section 12(b), this Agreement shall
terminate upon the date there has been an indefeasible Payment In Full of the
Senior Indebtedness. Notwithstanding the foregoing, to the extent that Senior
Lender receives payments on, or proceeds of the collateral for, the Senior Loan
which are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other
Person under any bankruptcy law, state or federal law, common law or equitable
cause (“Rescinded Payments”),  then
the Senior Indebtedness, the Senior Loan Documents and this Agreement shall be
deemed revived in respect of the Rescinded Payments with the same force and
effect as if such Rescinded Payments had never been made to Senior Lender,
whereupon any amounts (up to the total amount of the Rescinded Payments)
theretofore received by the Junior Lender on account of the Junior Indebtedness
shall be deemed to have been received by the Junior Lender in trust for the
benefit of Senior Lender and Junior Lender shall forthwith deliver the same to
Senior Lender for application against the Senior Indebtedness.


 


(c)           Binding Effect.  This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
successors and assigns.


 


(d)           Complete Agreement.  This Agreement contains all of the
agreements and conditions made between the parties regarding the subject matter
hereof, supersedes prior negotiations and agreements regarding the subject
matter hereof, and may not be modified, amended or terminated orally or in any
manner other than by an agreement in writing signed by Senior Lender and Junior
Lender. As between the Senior Lender and the Junior Lender, in the event of a
conflict between the terms and provisions of this Agreement, on the one hand,
and those of the Junior Loan Documents or Senior Loan Documents, on the other
hand, the terms and provisions of this Agreement
shall control.


 


(e)           Applicable Law.  This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois without giving
effect to conflicts of law principles.


 


(f)            Counterparts.  This
Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
one and the same agreement.


 


(g)           Further Assurances.  Junior Lender or Senior Lender each
will do, execute, acknowledge and deliver, or cause to be done, executed, acknowledged
and delivered, all such further acts, deeds, conveyances, mortgages,
assignments, transfers, pledges and


 


23

















 


assurances
as Senior Lender or Junior Lender, as the case may be, reasonably may require or
deem desirable for the better assuring and confirming the subordination as
described herein.


 


(h)           Exhibits.  All exhibits
referenced herein are incorporated in this Agreement by reference.


 


(i)            Terminology.  All
personal pronouns used in this Agreement whether used in the masculine,
feminine or neuter gender shall include all other genders. The singular shall
include the plural, and vice versa. Titles of articles are for convenience only
and neither limit nor amplify the substantive provision of this Agreement
itself.


 


(i)            Injunctive Relief.  The parties
shall be entitled to seek specific performance and other equitable relief in
connection with any action instituted with respect to this Agreement, it being
acknowledged that with respect to certain breaches under this Agreement, money
damages would be an inadequate remedy or the non-breaching party might
otherwise suffer an irreparable harm.


 


(k)           Venue and Jurisdiction.  The parties
agree that any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with this Agreement, the
transactions contemplated hereby or thereby shall be brought in any federal or
State of Illinois court sitting in Cook County, Illinois or the state where the
Premises are located and each of the parties hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding which is brought in any such
court has been brought in an inconvenient forum. Process in any such suit,
action or proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided
in Section 12(a) shall be deemed
effective service of process on such party.


 


(1)           No Third Party Benefits.  By their execution of this
Agreement, Senior Lender and Junior Lender do not intend to create any rights
of any kind in any third parties (other than any participants and successors
and assignees of Senior Lender or, to the extent permitted, Junior Lender).
Without limiting the foregoing, neither the Borrower nor any other Obligated
Party shall have any right to enforce, or shall have the benefit of, the
agreements hereunder.


 


(m)          Rights of Borrower.  In the event that Junior Lender
becomes the direct or indirect owner of the Borrower through the exercise of
its rights under the Junior Pledge, nothing herein is intended to limit the
rights of Borrower, as so reconstituted, to take, or to refrain from taking,
any action in accordance with applicable law.


 


[signature page follows]


 


24

















 


IN WITNESS WHEREOF, Senior Lender and Junior
Lender have executed and delivered this Agreement under seal as of the date
first above written.


 


	
   

  	
  SENIOR LENDER:

  
	
   

  	
   

  
	
   

  	
  CORUS BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John M. Barkidjija

  
	
   

  	
  Printed Name:

  	
  JOHN M. BARKIDJIJA

  
	
   

  	
  Printed Title:

  	
  SENIOR VICE PRESIDENT

  
				



 

















 


 


	
   

  	
  JUNIOR
  LENDER:

  
	
   

  	
   

  
	
   

  	
  MTRY FUNDING, LLC, a Delaware limited

  liability company

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  JPS  Holding I, LLC, as Managing

  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Richard Rudy

  



 


	
   

  	
   

  	
   

  	
  Printed
  Name:

  	
  Richard
  Rudy

  
	
   

  	
   

  	
   

  	
  Printed Title:

  	
  Managing Member

  



 

















 


EXHIBIT B


 


SENIOR LOAN DOCUMENTS


 


1.                                       Loan Agreement,
dated March 21, 2006, by and between Borrower and Senior Lender.


 


2.                                       Promissory
Note, dated March 21, 2006, by Borrower in favor of Senior Lender.


 


3.                                       Mortgage,
Security Agreement, Assignment of Rents And Fixture Filing, dated March 21,
2006, by Borrower, as Grantor, to Senior Lender, as Grantee.


 


4.                                       Assignment of
Leases And Rents, dated March 21, 2006, executed by Borrower for the
benefit of Senior Lender.


 


5.                                       Environmental
Remediation and Indemnification Agreement, dated March 21, 2006, executed
by Borrower and Guarantor for the benefit of Senior Lender.


 


6.                                       Assignment of
Operating Account, dated March 21, 2006, executed by Borrower in favor of
Senior Lender.


 


7.                                       Assignment of
Agreements, Plans and Permits, dated March 21, 2006, executed by Borrower
in favor of Senior Lender.


 


8.                                       Assignment of
Accounts, dated March 21, 2006, executed by Borrower in favor of Senior
Lender.


 


9.                                       Completion
Guaranty, dated March 21, 2006, executed by Guarantors for the benefit of
Senior Lender.


 


10.                                Carveout Guaranty, dated March 21,
2006, executed by Guarantors for the benefit of Senior Lender.


 


11.                                 Subordination and
Intercreditor Agreement, dated as of March 21,
2006, by and between Senior Lender and Junior Lender.


 


12.                                Collateral Assignment of
Developer’s Rights and Agreement With Respect to Condominium Documents, dated March 21,
2006, executed by Borrower in favor of Senior Lender.


 


13.                                Collateral Assignment of
Purchase Agreements With An Irrevocable Power of Attorney, dated March 21,
2006, executed by Borrower in favor of Senior Lender.


 


B-1

















 


EXHIBIT C


 


JUNIOR LOAN DOCUMENTS


 


(All dated as of March 21, 2006)


 


1.                                       Loan Agreement
between Junior Lender and Junior Borrower


 


2.                                       Promissory Note
by Borrower payable to the order of Junior Lender in the amount of $8,700,000


 


3.                                       Pledge and
Security Agreement by Junior Borrower in favor of Junior Lender


 


4.                                       Guaranty by
Guarantors in favor of Junior Lender


 


5.                                       Environmental
Indemnity Agreement between Borrower and Junior Lender


 


C-1