Exhibit 10.107




 




This instrument was prepared


by and when recorded return to:




 




David

A. Grossberg


Schiff Hardin & Waite


6600 Sears Tower


Chicago, IL 60606




 




Permanent

Real Estate Index Nos.:


02-09-301-007, 008,009,011,012


02-09-101-018


02-07-101-001, 002


02-16-101-007, 008




 




AMENDED

AND RESTATED


INTERCREDITOR

AGREEMENT




 




AMENDED AND RESTATED INTERCREDITOR AGREEMENT (the “Agreement”)

dated as of December 14, 1999, by and among HUNTLEY DEVELOPMENT LIMITED

PARTNERSHIP, an Illinois limited partnership (together with any successors and

assigns, the “Company”), BEAL BANK, SSB, a Texas State savings bank (the

“Bank”), U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association

formerly known as FIRST TRUST NATIONAL ASSOCIATION, as trustee (in such

capacity and together with any successors and assigns in such capacity, the “Series

B Trustee”) for the Series B Bondholders (as hereinafter defined).




 




R E C I T A L S:




 




A.                                   The parties hereto entered into an

lntercreditor Agreement dated as of November 19, 1997 (the “Original

Agreement”) contemporaneously with the closing under that certain Bond

Remarketing Contract by and between William Blair & Company and the Company

dated as of November 19, 1997 (the “Bond Remarketing Contract”).




 




B.                                     Pursuant to that certain Village of

Huntley, McHenry and Kane Counties, State of Illinois (the “Village”) Ordinance

Number 95-11-27-01 adopted and approved on November 27, 1995 (the “General

Ordinance”), the Village authorized, among other things, the issuance of

$14,000,000 aggregate principal amount of Tax Increment Allocation Revenue

Bonds (Huntley Redevelopment Project), Series B-1995 (as amended, amended and

restated, supplemented or otherwise modified from time to time and any

refinancing thereof, the “Series B Bonds”) and appointed the Series B

Trustee, as trustee, bond registrar and paying agent for the holders (the “Series

B Bondholders”) of the Series B Bonds. Pursuant to that certain Village

Ordinance Number 95-12-14-02 adopted and approved December 14, 1995, the

Village issued the Series B Bonds.




 




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C.                                     The Bank is the lender under that certain

Mortgage Note dated December 18, 1995 (as amended, amended and restated,

supplemented or otherwise modified from time to time and any credit agreement

or other agreement or agreements relating to any refinancing thereof, the “Bank

Mortgage Note”) issued by the Company payable to the order of the Bank.




 




D.                                    To secure the payment and performance of

the Bank Claim (as hereinafter defined), the Company has executed and delivered

to the Bank (i) that certain Mortgage, Security Agreement, Assignment of Leases

and Rents and Financing Statement, dated as of December 18, 1995 and recorded

in the Kane County Recorders Office on December 22, 1995 as Document No.

95K78402 and in the McHenry County Recorders Office on December 28, 1995 as

Document No. 95R57507 (as amended, amended and restated, supplemented or

otherwise modified from time to time, the “Bank Mortgage”), pursuant to

which the Company granted to the Bank a first priority mortgage lien on among

other property the certain real property legally described on Exhibit A

thereto (the “Bank  Real  Property”) which includes the

Series B Bondholder Property (as hereinafter defined).




 




E.                                      The Company, the Bank and the Northern

Trust Company (“NTC”) are parties to that certain Pledge, Security,

Subordination and Release Agreement dated as of May 29, 1997 (as amended,

amended and restated, supplemented or otherwise modified from time to time, the

“Bank  Security  Agreement”), pursuant to which the Company

granted to the Bank a security interest in the Series B Bonds to further secure

the payment and performance of the Bank Claim, which security interest is

subordinate only to the security interest in such Series B Bonds granted by the

Company to NTC pursuant to the Bank Security Agreement (which first priority

and subordinate security interest liens shall be released on the date hereof).




 




F.                                      The Village in contemplation of the

transactions relating to the Bond Remarketing Contract has adopted and approved

Ordinance Number 97-09-18-01 (the General Ordinance, as previously amended and

supplemented by said Ordinance, and as further amended, amended and restated,

supplemented or otherwise modified from time to time, the “Series B

Ordinance”), pursuant to which the Village, among other things, consented

to the addition of the Series B Bondholder Real Property (as hereinafter

defined) as additional collateral for the Series B Bonds.




 




G.                                     To secure the payment and performance of

the Series B Bondholder Claim (as hereinafter defined), the Company has

executed and delivered to the Trustee, for the benefit of the Series B

Bondholders, that certain Mortgage and Security Agreement dated as of November

19, 1997 which was recorded with the Kane County Recorders Office immediately

after execution (as amended, amended and restated, supplemented or otherwise

modified from time to time, the “Series B Bondholder Mortgage”),

pursuant to which the Company granted to the Trustee, for the benefit of the

Series B Bondholders, a first priority mortgage lien on and security interest

in the real property legally described on Exhibit A attached hereto (the

“Series B Bondholder Real Property”).




 




H.                                    The Bank Real Property includes the

Series B Bondholder Real Property.




 




I.                                         All of the actions contemplated in the

Recitals of this Agreement are deemed to have occurred simultaneously with the

execution and delivery of the Original Agreement unless




 




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such action is stated in the Recitals A through I inclusive to have

occurred on an earlier date.




 




J.                                        The Company has obtained from the Bank a

new loan in the maximum principal amount of $l0,000,000.00 (the “New Bank

Loan”) which is now secured by, among other things, liens and security

interests in regard to that portion of the Bank Real Property which is still

owned by the Company and is legally described in Exhibit A to the New Bank

Mortgage (as hereinafter defined) other than that portion of the Series B Bondholder

Real Property which is still owned by the Company and is legally described in

Exhibit A to the New Bank Mortgage. A condition that the Company must satisfy

in order to obtain the funding of additional proceeds of the New Bank Loan is

that this Amendment must be entered into by all parties to effect amendments to

the Original Agreement as contemplated hereby.




 




K.                                    The New Bank Loan is now secured by,

among other things, that certain Mortgage, Security Agreement and Assignment of

Leases and Rents, dated as of October 27, 1999 (the “New Bank Mortgage”), and

which encumbers, among other property, the Bank Real Property, other than the

Series B Bondholder Real Property. 

Promptly following the execution hereof, the Company and the Bank will

amend the New Bank Mortgage, among other things, to include the Series B

Bondholder Real Property as part of the Mortgaged Property encumbered thereby,

with the New Bank Mortgage, as so amended, being subject, subordinate and

inferior to the Series B Bondholder Mortgage (as hereinafter defined) in regard

to the Series B Bondholder Real Property. 

As required by the Series B Bondholder Mortgage, the Series B Trustee

hereby consents to the encumbering of the Series B Bondholder Real Property by

the liens, security interest and other terms of the New Bank Mortgage, provided

such New Bank Mortgage is, as provided herein, subject, subordinate and

inferior to the Series B Bondholder Mortgage in regard to the Series B

Bondholder Real Property.




 




L.                                      The parties hereto hereby agree that from

and after the date hereof, (i) the Promissory Note, dated as of October 27,

1999, in the state principal amount of $10,000,000.00, executed by the Company

and payable to the order of the Bank, which evidences the New Bank Loan (the

“New Bank Note”), will be included within the definition of Bank Mortgage Note,

(ii) the New Bank Mortgage will be included within the definition of Bank

Mortgage, and (iii) the New Bank Note, the New Bank Mortgage and the other

documents which evidence, secure and/or otherwise relate to the New Bank Loan

will be considered Loan Documents (as hereinafter defined).




 




M.                                 Concurrently with the execution of this

Agreement, Company and Series B Trustee are entering into an Amended and

Restated Series B Bondholder Mortgage of even date herewith, which from and

after the date hereof will be deemed to be the Series B Bondholder Mortgage.




 




N.                                    The parties are executing and delivering

this instrument to evidence their agreement in respect of their relative rights

with respect to the Collateral (as hereinafter defined).




 




A G R E E M E N T:




 




The parties hereto agree as follows:




 




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ARTICLE I




 




DEFINITIONS




 




SECTION 1.1. Definitions.  As used in this Agreement, the following terms shall have the

meanings specified below:




 




“Bank Claim” shall mean all obligations of the

Company to the Bank secured by the Bank Mortgage.




 




“Bank Collateral” shall mean the Collateral in

which the Bank has a lien or security interest pursuant to the Loan Documents.




 




“Bank Real Property” shall mean the real

property described in Exhibit A annexed to the Bank Mortgage and

mortgaged to the Bank pursuant to the Bank Mortgage.




 




“Cash Equivalents” shall mean (i) marketable

direct obligations issued by, or unconditionally guaranteed by, the government

of the United States of America or issued by any agency thereof and backed by

the full faith and credit of the United States of America, in each case

maturing within one year from the date of acquisition thereof, (ii) marketable

direct obligations issued by any state of the United States of America or any

political subdivision of any such state or any public instrumentality thereof

maturing within one year from the date of acquisition thereof and, at the time

of acquisition, having one of the two highest ratings obtainable from either

Standard & Poor’s Corporation (“S&P”) or Moody’s Investors

Service, Inc. (“Moody’s”), (iii) commercial paper maturing no more than

one year from the date of creation thereof and, at the time of acquisition,

having a rating of at least A-1 from S&P or at least P-1 from Moody’s, (iv)

certificates of deposit or bankers’ acceptances maturing within one year from

the date of acquisition thereof issued by any commercial bank organized under

the laws of the United States of America or any state thereof or the District

of Columbia or any U.S. branch of a foreign bank having at the date of

acquisition thereof combined capital and surplus of not less than $250,000,000

and (v) repurchase obligations with a term of not more than seven days for

underlying securities of the types described in clause (i) above entered into

with any bank meeting the qualifications specified in clause (iv) above.




 




“Collateral” shall mean all of the Series B

Bondholder Collateral and Bank Collateral.




 




“Collateral Account” shall mean the Series B

Mortgage and Condemnation account established and maintained under Section 8(c)

of the Series B Ordinance.




 




“Collateral Account Funds” shall mean all of

the funds from time to time on deposit in the Collateral Account; all

investments (including, without limitation, Cash Equivalents) and all

certificates and instruments from time to time representing or evidencing such

investments; all notes, certificates of deposit, checks and other instruments

from time to time hereafter delivered to or otherwise possessed by the Trustee

for or on behalf of the Company in substitution for, or in addition to, any or

all of the Series B Bondholder Collateral; and all interest, dividends, cash,

instruments and other property from time to time received, receivable or

otherwise distributed in respect of or in exchange for any or all of the items

constituting Series B Bondholder Collateral.




 




“Enforcement” shall mean, collectively or

individually, for so long as the Series B Ordinance Documents shall be in

effect, demand made by the Trustee (acting at the direction of the Series B

Bondholders in accordance with the provisions of the Series B Ordinance) or by

the Bank for payment or the acceleration of the Bank Claim or the Series B

Bondholder Claim pursuant to the




 




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Loan Documents or the Series B Bonds, as applicable (other than any

acceleration which may occur automatically upon the filing of a bankruptcy

petition by the Company or any of its subsidiaries or the Village, as

applicable), held by such person, repossess any Collateral or commence the

judicial or other enforcement of any of the rights and remedies of the Secured

Party under the Series B Ordinance or the Bank Mortgage Note (as the case may

be) or any related mortgage, guarantee or agreement or under applicable law.




 




“Enforcement Notice” shall mean a written

notice delivered, at a time when a “Default” or an “Event of Default”

(as defined in the Series B Ordinance Documents or the Loan Documents) has

occurred and is continuing, by either the Trustee or the Bank to the Secured

Parties announcing that it has commenced Enforcement with respect to any of its

rights and remedies.




 




“Loan Documents” shall mean the Memorandum of

Net Profits Interest, the Bank Mortgage Note, the Bank Mortgage, the Bank

Security Agreement and all other agreements secured by the Bank Mortgage and

all other documents, instruments and agreements now or hereafter evidencing or

securing all or any portion of the Company’s obligations under the Bank

Mortgage Note, including any documents, instruments or agreements evidencing or

securing the amendment, modification, replacement, renewal, restatement,

refunding, deferral, extension, supplement or resale thereof.




 




“Memorandum of Net Profits Interest” shall mean

that certain Memorandum of Net Profits Interest dated December 18, 1995 by

and between the Company and the Bank and recorded as Document No. 95K07843.




 




“Proceeds” shall have the meaning assigned to

the term “proceeds under the UCC and, in any event, shall include, without

limitation, any and all (i) proceeds of any insurance, indemnity, warranty or

guarantee payable to the Trustee, to the Bank or to the Company from time to

time with respect to any of the Collateral, (ii) payments (in any form

whatsoever) made or due and payable to the Company from time to time in

connection with any requisition, confiscation, condemnation, seizure or

forfeiture of all or any part of the Collateral by any governmental authority

(or any person acting under color of a governmental authority), (iii) products

of the Collateral and (iv) other amounts from time to time paid or payable

under or in connection with any of the Collateral, including, without

limitation, any amounts payable in respect to litigation.




 




“Real Property” shall mean, collectively, the

Bank Real Property and the Series B Bondholder Real Property.




 




“Secured Party” shall mean any of the Trustee

(for the benefit of the Series B Bondholders) or the Bank.




 




“Series B Bondholder Claim” shall mean the

Obligations as defined in the Series B Bondholder Mortgage.




 




“Series B Bondholder Collateral” shall mean the

Collateral in which the Trustee has a lien or security interest pursuant to the

Series B Bondholder Mortgage.




 




“Series B Bondholder Primary Collateral” shall

mean, collectively, the Series B Bondholder Real Property, the Collateral

Account, the Collateral Account Funds and the Proceeds of 




 




5





























 




all of the foregoing.




 




“Series B Bondholder Real Property” shall mean

the real property described in Exhibit A annexed hereto and mortgaged to the

Trustee pursuant to the Series B Bondholder Mortgage.




 




“UCC” shall mean the Uniform Commercial Code as

in effect in any relevant jurisdiction.




 




SECTION 1.2. The parties hereto hereby agree that from

and after the date hereof, (i) the Promissory Note, dated as of October 27,

1999, in the stated principal amount of $10,000,000.00, executed by the Company

and payable to the order of the Bank, which evidences the New Bank Loan, will

be included within the definition of Bank Mortgage Note, (ii) the New Bank

Mortgage will be included within the definition of Bank Mortgage,(iii) the New

Bank Note, the New Bank Mortgage and the other documents which evidence, secure

and/or otherwise relate to the New Bank Loan will be considered Loan Documents;

and (iv) the Amended and Restated Series B Bondholder Mortgage of even date

herewith will be deemed to be the Series B Bondholder Mortgage.




 




ARTICLE II




 




INTERCREDITOR PROVISIONS




 




SECTION 2.1. Acknowledgment of Respective Security

Interests; Lien Priorities: Release of Lien on Series B Bonds.




 




(a)                                  Notwithstanding the date, manner or order

of perfection of the security interests and liens granted to the Bank and the

Trustee, and notwithstanding any provisions of the UCC, or any applicable law

or decision, or the Loan Documents or the Series B Ordinance Documents, or

whether the Bank or the Trustee holds possession of all or any part of the

Collateral, or the granting provisions of any mortgage or security instrument

or the provisions of any financing statement, the following, as between the

Bank and the Trustee, shall be the relative security interests and priority of

liens of the Bank and the Trustee in the Series B Bondholder Collateral:




 




(i)                                     The Trustee shall have a first and prior

security interest in or mortgage lien on the Series B Bondholder Primary

Collateral and Proceeds thereof to the extent such collateral and proceeds are

used to satisfy obligations under the Series B Bonds in an amount not to exceed

the aggregate of (A) the principal amount of the Series B Bonds on the date

hereof ($14,000,000), as reduced by any redemption after the date hereof, (B)

any and all accrued and unpaid interest on the Series B Bonds from and after

the date hereof, and (C) expenses of the Trustee incurred in connection with

enforcing the terms of the Series B Bondholder Mortgage and this Agreement.




 




(ii)                                  The Bank shall have a subordinate

security interest in or mortgage lien on the Series B Bondholder Primary

Collateral and Proceeds thereof; provided, however, that if the Company

sells all or any portion of the Series B Real Property or for any other reason

the Company receives any Proceeds from any portion of the Series B Real

Property (the “Released Parcel”) either: (A) if, before or after giving effect

to such release, no Default (as defined in the Series B Bondholder Mortgage

herein a “Default”) or Event of Default (as




 




6





























 




defined in the Series B Ordinance herein an “Event of Default”) exists

and is continuing, the greater of (x) 50%  of the appraised value of the Released

Parcel (as determined pursuant to that certain appraisal of Frank John Karth

& Associates dated July 1997) (the “Appraised Value”) or (y) an

amount per square foot of the Released Parcel equal to the amount in the column

entitled “Deposit to Collateral Account” with respect to the Released Parcel

set forth in Exhibit B attached hereto, shall be deposited into the

Collateral Account (provided,  however that notwithstanding the

foregoing, with respect to Buildable Auto Mall Property (as defined in the

Series B Bondholders Mortgage), an amount equal to 50%  of the product of (a) $3.72

multiplied by (1,) the square footage of the then applicable Released Parcel of

Buildable Auto Mall Property shall be deposited into the Collateral Account);

and the balance of the Proceeds shall be disbursed to Beal Bank in accordance

with the Bank Mortgage or to the Company if the Bank Mortgage has been

satisfied; or (B) if, either before or after giving effect to such release, a

Default or Event of Default exists and is continuing, then notwithstanding the

foregoing clause (A), 100% of the Proceeds shall be deposited, in accordance

with the Series B Mortgage, in the Collateral Account; provided, however

that at such time as the Default or Event of Default shall no longer be

continuing, an amount equal to the excess of the amount deposited in the

Collateral Account, as such amount has been reduced to cure the Default or

Event of Default, over the greater of (x) or (y) of Clause 2.1 (a)(ii)(A) above

shall be disbursed to Beal Bank in accordance with the Bank Mortgage or to the

Company if the Bank Mortgage has been satisfied.




 




If, at such time as, a certificate of occupancy has

been issued by the appropriate governmental authority with respect to a

Released Parcel, the square footage of the improvements constructed on such

Released Parcel divided by the acreage of such Released Parcel equals or

exceeds the number set forth in the column entitled “Minimum FAR in Feet/Acre”

with respect to such Released Parcel as set forth in Exhibit B attached

hereto, and no Default or Event of Default then exists or is continuing, all

amounts deposited in the Collateral Account with respect to such Released

Parcel, together with any and all interest thereon, shall be disbursed to Beal

Bank in accordance with the Bank Mortgage or to the Company if the Bank

Mortgage has been satisfied. In the event that amounts deposited in the

Collateral Account with respect to any Released Parcel for which a certificate

of occupancy has been issued have not been released pursuant to the immediately

preceding sentence, and no Default or Event of Default then exists or is

continuing, such amounts, together with all interest thereon, shall be

disbursed to Beal Bank in accordance with the Bank Mortgage or to the Company

if the Bank Mortgage has been satisfied, at such times as the square footage of

all improvements constructed on all Released Parcels for which certificates of

occupancy have been issued divided by the acreage of all such Released Parcels

equals or exceeds the average number of square feet of floor area per acre set

forth in the column entitled “Minimum FAR in Feet/Acre” with respect to all

such Released Parcels as set forth in Exhibit  B attached hereto.




 




(iii)                               Other than the security interest and

rights in and to the Series B Bondholder Real Property granted to the Trustee

pursuant to the Series B Bondholder Mortgage, the Trustee acknowledges that it

has no rights in or to the Bank Real Property.




 




(b)                                 The Bank released by recording the

Original Agreement any and all liens created by the Bank Security Agreement and

any other liens, if any, which it has placed upon those certain $14,000,000

aggregate principal amount Village of Huntley, McHenry and Kane Counties,

Illinois Tax Increment Allocation Revenue Bonds (Huntley Redevelopment Project)

Series B-1995 and agrees to deliver to the Trustee a UCC-3 termination

statement or any other document necessary to




 




7





























 




effect such release.




 




(c)                                  Nothing in this Section  2.1

shall be deemed a consent by the Bank to the sale of any Bank Collateral.




 




(d)                                 Except as expressly agreed in Section

2.1(a) and (b), the Bank retains all rights, security interests and

liens granted under the Loan Documents, including, without limitation, the net

profit interest granted by the Company to the Bank pursuant to the Agreement

and Assignment of Net Profits Interest referenced in the Memorandum of Net

Profits Interest.




 




SECTION 2.2. Enforcement Actions.




 




(a)                                  The Bank agrees that, contemporaneously

with the commencement of Enforcement with respect to the Bank Mortgage Note

and/or any security instruments relating thereto, it shall deliver to the

Trustee an Enforcement Notice. The Trustee, on behalf of the Series B

Bondholders, agrees that, contemporaneously with the commencement of

Enforcement with respect to the Series B Ordinance, the Series B Bonds and/or

any security instrument relating thereto, it shall deliver to the Bank an

Enforcement Notice.




 




(b)                                 If the Bank or Trustee has any security

interest in or lien on any of the Series B Bondholder Collateral as security

for payment of any indebtedness of the Company, or of any other party, other

than the Bank Claim or the Series B Bondholder Claim, respectively, then the

Bank or the Trustee, as the case may be, may not apply the proceeds of any of

the Collateral to satisfy such other indebtedness until the Bank Claim and the

Series B Bondholder Claim are paid in full or otherwise satisfied.




 




(c)                                  Subject to the provisions of this Section

2.2, the Trustee and the Bank agree that either party may commence,

prosecute and complete Enforcement without further obligation to the other

party except as provided in the Series B Bondholder Mortgage.




 




SECTION 2.3. Notices

of Default. Each party hereto agrees to give to the other, copies of any

notice of the occurrence or existence of an Event of Default, demand for

payment, acceleration, foreclosure, exercise of remedies and any other written

notice of a like nature, sent to the Company, or the Village, as the case may

be, promptly after the sending of such notice to such person, but the failure

to do so shall not affect the validity or effect of such notice or create a

cause of action against the Secured Party failing to give such notice or create

any claim or right on behalf of any third party. The sending of such notice

shall not give the recipient the obligation to cure such Event of Default.




 




SECTION 2.4. Use

of Proceeds of Collateral. The Trustee agrees that unless and until the

Bank Mortgage has been satisfied, (a) no Proceeds of the Series B Bondholder

Collateral, including Collateral Account Funds, shall be disbursed to the

Company and (b) any amounts which would otherwise be disbursed to the Company

shall be disbursed to the Bank.




 




SECTION 2.5. UCC

Notices. In the event that any Secured Party shall be required by the UCC

or any other applicable law to give notice to any other Secured Party of any

intended disposition of Collateral, such notice shall be given in accordance

with Section 3.16 hereof and ten (10) days’ notice shall be deemed to be

commercially reasonable.




 




8





























 




SECTION 2.6. Consent.

As required by the Series B Bondholder Mortgage, the Series B Trustee hereby

consents to the encumbering of the Series B Bondholder Real Property by the

liens, security interest and other terms of the New Bank Mortgage, provided

such New Bank Mortgage is, as provided herein, subject, subordinate and

inferior to the Series B Bondholder Mortgage in regard to the Series B

Bondholder Real Property.




 




ARTICLE III




 




MISCELLANEOUS




 




SECTION 3.1. Contesting

Liens or Security Interest. No Secured Party shall contest the validity,

perfection, priority or enforceability of any lien or security interest granted

to any other Secured Party and each Secured Party shall cooperate in the

defense of any action contesting the validity, perfection, priority or

enforceability of such liens or security interests brought by the Company or

any third party.




 




SECTION 3.2. No

Additional Rights for Company Hereunder. If any Secured Party shall enforce

its rights or remedies in violation of the terms of this Agreement, the Company

agrees that it shall not raise such violation as a defense to the enforcement

by any other Secured Party under the Loan Documents or the Series B Ordinance

Documents, nor assert such violation as a counterclaim or basis for setoff or

recoupment against any Secured Party.




 




SECTION 3.3. Limitation

of Liability. Except as provided in this Agreement, the Trustee shall not

have any liability to the Bank except for gross negligence or willful

misconduct.




 




SECTION 3.4. Amendments

to Financing Arrangements or to this Agreement. The Bank and the Trustee

shall each use its best efforts to notify the other or others of any amendment,

modification or waiver to any Loan Document or any Series B Ordinance Document

respectively, but the failure to do so shall not create a cause of action

against the party failing to give such notice or create any claim or right on

behalf of any third party. The Bank and the Trustee shall, upon request of the

other, provide copies of all such modifications, amendments and waivers and

copies of all other documentation relevant to the Collateral. All

modifications, amendments and waivers of this Agreement must be in writing and

duly executed by an authorized officer of each Secured Party to be binding and

enforceable except that the written consent of the Company shall be required if

the amendment, modification or waiver would impose, or have the effect of

imposing, on the Company, more restrictive covenants or greater obligations

than those applicable to the Company under this Agreement, which consent shall

not be unreasonably withheld.




 




SECTION 3.5. Term

of Agreement. The provisions of this Agreement shall continue in effect

until all the Company’s Obligations now or hereafter evidenced or secured by

the Loan Documents shall have been fully paid in accordance with the terms

thereof and the Loan Documents shall have terminated.




 




SECTION 3.6. Further

Assurances. Each of the parties hereto shall execute and file all such

farther documents and instruments, and perform such other acts, as may be

necessary or advisable to effectuate the purposes of this Agreement.




 




9





























 




SECTION 3.7. Inconsistent

Provisions. If any provision of this Agreement shall be inconsistent with,

or contrary to, any provision in the Loan Documents, the Series B Ordinance

Documents, or any other instrument delivered in connection with the

transactions contemplated thereby, the applicable provision in this Agreement

shall be controlling and shall supersede such inconsistent provision to the

extent necessary to give fall effect to all provisions contained in this

Agreement.




 




SECTION 3.8. CONSENT

TO JURISDICTION.  THE PARTIES HERETO

HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT

LOCATED WITHIN COOK COUNTY, STATE OF ILLINOIS AND IRREVOCABLY AGREE THAT,

SUBJECT TO THE TRUSTEE’S ORTHE BANK’S ELECTION, ALL ACTIONS OR PROCEEDINGS

RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. EACH PARTY HERETO

ACCEPTS FOR AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND

UNCONDITIONALLY, IN ANY SUCH ACTIONS OR PROCEEDINGS THE EXCLUSIVE JURISDICTION

OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND

IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION

WITH THIS AGREEMENT, WITH ANY JUDGMENT SUBJECT TO RIGHTS OF APPEAL IN THE

JURISDICTIONS SET FORTH ABOVE.




 




SECTION 3.9. Marshalling of Assets. The Bank

hereby waives any and all rights to have all or any portion of the Series B

Bondholder Collateral marshalled upon any foreclosure of any liens of the

Trustee. The Trustee hereby waives any and all rights to have all or any

portion of the Bank Collateral marshalled upon any foreclosure of any liens of

the Bank.




 




SECTION 3.10. GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY AND

CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD

TO PRINCIPLES OF CONFLICTS OF LAW.




 




SECTION 3.11. Assignment. The Trustee, the

Series B Bondholders and the Bank shall have the right to assign, transfer or

grant participations in part or all of the obligations owed to them, the

security therefor and their rights and obligations hereunder.




 




SECTION 3.12. Successors and Assigns. This

Agreement shall be binding upon and inure to the benefit of the respective

successors and permitted assigns of each of the parties hereto.




 




SECTION 3.13. Benefits of Agreement. This

Agreement is for the sole benefit of the Secured Parties, their successors and

assigns, and, except as otherwise provided in Section 3.4 with respect to the

Company, no other person shall be entitled to rely hereon or enforce any of the

terms hereof.




 




SECTION 3.14. Authority.

Each of the parties represents and warrants to all other parties hereto that

the execution, delivery and performance by or on behalf of such party to this

Agreement have been duly authorized by all necessary action, corporate or

otherwise, do not violate any provision of law, governmental regulation, or any

Agreement or instrument by which such party is bound, and require no

governmental or other consent that has not been obtained and is not in fall

force and effect.




 




10





























 




SECTION 3.15. Counterparts.

This Agreement may be executed in any number of counterparts, each counterpart,

when so executed and delivered, shall be deemed to be an original and all of

which counterparts, taken together, shall constitute one and the same

Agreement.




 




SECTION 3.16. Notices.

All notices, instructions and other communications required or permitted to be

given to or made upon any party hereto shall be in writing, shall be personally

delivered or sent by registered or certified mail, postage prepaid, return

receipt requested, or by a reputable courier delivery service, or by prepaid

telex or telecopier. Unless otherwise specified by the party to receive such

notice in a notice sent or delivered in accordance with the foregoing

provisions of this Section, notices or demands or other communications shall be

given to or made upon the parties hereto at their respective addresses (or to

their telecopier numbers) indicated below:




 




	

  If to the Company:


  	

   


  	

  Huntley

  Development Limited Partnership


  
	

   


  	

   


  	

  c/o The Prime Group, Inc.


  
	

   


  	

   


  	

  77 W. Wacker Drive, Suite 4200


  
	

   


  	

   


  	

  Chicago, Illinois 60601


  
	

   


  	

   


  	

  Attention: Michael W. Reschke


  
	

   


  	

   


  	

   


  
	

  With a copy to:


  	

   


  	

  The Prime Group,

  Inc.


  
	

   


  	

   


  	

  77 W. Wacker Drive, Suite 4200


  
	

   


  	

   


  	

  Chicago, Illinois 60601


  
	

   


  	

   


  	

  Attention: Robert J. Rudnik


  
	

   


  	

   


  	

   


  
	

  If to the Trustee:


  	

   


  	

  U.S. Bank Trust

  National Association f/k/a


  
	

   


  	

   


  	

  First Trust National Association


  
	

   


  	

   


  	

  One Illinois Center


  
	

   


  	

   


  	

  111 East Wacker Drive


  
	

   


  	

   


  	

  Suite 3000


  
	

   


  	

   


  	

  Chicago, Illinois 60601


  
	

   


  	

   


  	

  Attention: Corporate Trust Development


  
	

   


  	

   


  	

   


  
	

  If to the Bank:


  	

   


  	

  Beal Bank, SSB


  
	

   


  	

   


  	

  15770 North Dallas Parkway


  
	

   


  	

   


  	

  Suite 300


  
	

   


  	

   


  	

  Dallas, Texas 75248


  
	

   


  	

   


  	

  Attention: William T. Saurenmann


  
	

   


  	

   


  	

   


  
	

  With a copy to:


  	

   


  	

  Jenkens &

  Gilchrist


  
	

   


  	

   


  	

  1445 Ross Avenue


  
	

   


  	

   


  	

  Dallas, Texas 75202


  
	

   


  	

   


  	

  Attention: Lawrence Adams


  





 




SECTION 3.17. Severability

of Provisions. Any provision of this Agreement that is unenforceable in any

jurisdiction shall, as to such jurisdiction, be ineffective to the extent of

such unenforceability, without invalidating the remaining provisions hereof or

affecting the validity or enforceability of such provision in any other

jurisdiction.




 




11





























 




SECTION 3.18. Headings.

The article and section headings used in this Agreement are for convenience of

reference only and shall not affect the construction of this Agreement.




 




SECTION 3.19. Concerning

the Trustee. Notwithstanding anything to the contrary set forth herein, no

provision of this Agreement shall require the Trustee to expend or risk its own

funds or otherwise incur any financial liability in the performance of its

duties hereunder, or in the exercise of any of its powers, if it shall have reasonable

grounds for believing repayment of such funds or adequate indemnity against

such risk or liability is not reasonably assured to it.




 




SECTION 3.20. Continuing

Effect of Loan Documents. Except as modified above, the Loan Documents

shall remain in full force and effect. The execution, delivery and

effectiveness of this Agreement shall not operate as a waiver of any right,

power or remedy of the Bank under any Loan Document, nor constitute a waiver of

any provision of any Loan Document, except as set forth herein.




 




SECTION 3.21 Acknowledgment.

The parties hereto hereby advise each other that to the best knowledge of each

(i) no default or failure to perform currently exists under or in regard to the

Series B Bondholder Mortgage or the Loan Documents, and (ii) the outstanding

principal amount of the Series B Bonds, as defined in the Intercreditor

Agreement, the amount of accrued and unpaid interest thereon and the balances

of the collateral accounts which secure the Series B Bonds, each as of December

1, 1999, are shown on Exhibit C attached hereto.




 




SECTION 3.22 Supercede.

This Agreement expressly supercedes the Original Agreement.




 




IN WITNESS

WHEREOF, the parties have executed this Agreement as of the date and year first

above written.




 




	

   


  	

  U.S. BANK TRUST NATIONAL ASSOCIATION,


  
	

   


  	

  a national banking association formerly known as


  
	

   


  	

  FIRST TRUST NATIONAL ASSOCIATION, as


  
	

   


  	

  Trustee


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

   


  	

  Name:  John

  D. Bowman


  
	

   


  	

   


  	

  Title:  Vice

  President


  
	

   


  	

   


  
	

   


  	

  BEAL BANK, SSB


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

   


  	

  Name: William T.

  Saurenmann


  
	

   


  	

   


  	

  Title:  Senior Vice President


  





 




12





























 




	

   


  	

  HUNTLEY DEVELOPMENT LIMITED PARTNERSHIP


  
	

   


  	

   


  
	

   


  	

  By:


  	

  Huntley Development Company


  
	

   


  	

  Its:


  	

  Managing General Partner


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

   


  	

  Name: Gary J.

  Skoien


  
	

   


  	

   


  	

  Title:  Vice

  President


  





 




 




13





























 




EXHIBIT A




 




EXHIBIT A-1 hereto

describes the Series B Bondholder Real Property at the date of recording the

Series B Bondholder Mortgage and EXHIBIT A-2 hereto describes the Series B

Bondholder Real Property owned by Company on the date of recording hereof.




 




14





























 




EXHIBIT B




 




	

  Parcel #


  	

   


  	

  Acres


  	

   


  	

  Appraised


  Value


  	

   


  	

  Deposit to


  Collateral


  Acct./Sq. Ft.


  	

   


  	

  Minimum


  Floor Area


  Ratio


  	

   


  	

  Minimum


  FAR in


  Feet/Acre


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  IA


  	

   


  	

  6.478


  	

   


  	

  $


  	

  950,000


  	

   


  	

  $


  	

  1.685


  	

   


  	

  35


  	

  %


  	

  15,246


  	

   


  
	

  lB


  	

   


  	

  13.840


  	

  (i)


  	

  1,467,972


  	

   


  	

  $


  	

  1.685


  	

   


  	

  35


  	

  %


  	

  15,246


  	

   


  
	

  7C


  	

   


  	

  8.720


  	

   


  	

  1,425,000


  	

   


  	

  $


  	

  1.875


  	

   


  	

  20


  	

  %


  	

  8,712


  	

   


  
	

  7D


  	

   


  	

  1.750


  	

   


  	

  534,000


  	

   


  	

  $


  	

  3.500


  	

   


  	

  25


  	

  %


  	

  10,890


  	

   


  
	

  7E


  	

   


  	

  1.800


  	

   


  	

  588,000


  	

   


  	

  $


  	

  3.750


  	

   


  	

  20


  	

  %


  	

  8,712


  	

   


  
	

  7F


  	

   


  	

  1.800


  	

   


  	

  588,000


  	

   


  	

  $


  	

  3.750


  	

   


  	

  20


  	

  %


  	

  8,712


  	

   


  
	

  Lots 16-25


  	

   


  	

  51.611


  	

  (ii)


  	

  5,910,000


  	

   


  	

  $


  	

  1.860


  	

   


  	

  13


  	

  %


  	

  5,663


  	

   


  
	

  Lots 500-504


  	

   


  	

  48.960


  	

   


  	

  1,420,000


  	

   


  	

  $


  	

  1.000


  	

   


  	

  40


  	

  %


  	

  17,424


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

  $


  	

  12,882,972


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  





 






















(i)                                     Total of 13.84 acres, however, only 10

acres are buildable. The release of Parcel lB shall not be subject to the

Deposit to the Collateral Account so long as the Developer commences

construction by July 10, 1998.




 




(ii)                                  Total of 5l.611 acres, however only 36.49

acres are buildable.




 




15





























 




EXHIBIT C




 




The outstanding principal amount of Series B Bonds as

of December 1, 1999 is $14,000,000.00.




 




The accrued and unpaid interest on the Series B Bonds

as of December 1, 1999, is $-0-.




 




The balance of the collateral accounts which secure

the Series B Bonds as of December 1, 1999 is $1,558,526.95.




 




16