|
EXHIBIT 5
<br />at the time of any such disbursements may have been In default under the Borrower Loan Documents and
<br />regardless of whether Governmental Lender or Bankwere obligated to make any such disbursements, shall
<br />be and remain a lien or charge against the Project that is unconditionally prior and superior to the lien and
<br />effect of Subordinating Party's Security Documents.
<br />3. APPLICATION OF PAYMENTS UNDER SUBORDINATING PARTY'S LOAN. Until such
<br />time as all amounts outstanding under the Borrower Loan have been indefeasibly paid in.full, prior to the
<br />occurrence of an Event of Default (as such term is defined In the Borrower Loan Documents), Subordinating
<br />Party shall be entitled to receive and retain payments made pursuant to and in accordance with the
<br />Subordinating Party's Loan Documents; provided, however, that no such payment is made more than ninety
<br />(90) days in advance of Its scheduled due date. Upon the occurrence of an Event of Default under the
<br />Borrower Loan Documents, after Subordinating Party receives notice of such Event of Default from Bank
<br />with written Instructions directing Subordinating Party not to accept payments from Borrower on account of
<br />the Subordinating Party's Loan (Including, but not limited to, principal, Interest, additional interest, late
<br />payment charges, default Interest, attorneys' fees, or any other sums secured by Subordinating Party's
<br />Deed of Trust), all amounts (including, without limitation, all insurance proceeds and condemnation awards)
<br />received by Subordinating Party from, or for the account of, Borrower under Subordinating Party's Loan
<br />shall be immediately remitted to Bank at the address set forth above to be applied by Governmental Lender
<br />in reduction of amounts outstanding under the Borrower Loan, in such amounts and in such order as Bank
<br />shall determine. In the event that any payment is made to Subordinating Party which Is not permitted under
<br />this Agreement, such payment shall be held by Subordinating Party in trust for the benefit of Governmental
<br />Lender and Bank and shall be paid immediately to Bank for application to the payment of all of indebtedness
<br />and obligations remaining unpaid under the Borrower Loan. If Subordinating Party receives written notice
<br />from Bank that the Event of Default which gave rise to the Subordinating Parry's obligation not to accept
<br />payments has been cured, waived, or otherwise suspended by Bank, the restrictions on payment to
<br />Subordinating Party in this Section 3 shall terminate, and Bank shall have no right to any subsequent
<br />payments made to Subordinating Party by Borrower prior to Subordinating Parry's receipt of a new notice
<br />from Bank of an Event of Default in accordance with this Section 3. Without limiting the complete
<br />subordination of the Subordinating Party's Loan to the payment In full of the Borrower Loan, in any
<br />bankruptcy, insolvency, receivership or similar proceeding, upon any payment or distribution to creditors,
<br />Governmental Lender and Bank shall be paid in full first in cash before the Subordinating Party shall be
<br />entitled.to receive any payment or other distribution on account of or in respect to the Subordinating Party's
<br />Loan and, until the entire Borrower Loan is paid in full in cash, any payment or distribution to which the
<br />Subordinating Party will be entitled but for this Agreement (whether In cash, property or other assets) shall
<br />be paid to Bank.
<br />4. . SUBORDINATION TO MODIFICATION OF BORROWER LOAN. If Governmental Lender
<br />and Bank extend or otherwise modify the terms of the Borrower Loan (including any amendment or
<br />modification which requires the Subordinating Parry's prior written consent pursuant to Paragraph 1 and for
<br />which Subordinating Party has granted such consent), Subordinating Party, upon 20 days' prior notice to
<br />Subordinating Party, shall execute a new subordination agreement, in the form of this Agreement,
<br />confirming Subordinating Party's subordination of the effect of Subordinating Party's Security Documents
<br />against the Project to the lien or charge of the Deed of Trust. In the event that consent from the
<br />Subordinating Party is not required hereunder or such consent has been obtained, the execution of such
<br />new subordination agreement, however, shall not be a condition to the effectiveness of the subordination
<br />of Subordinating Party's Security Documents against the Project to the lien or charge of the Deed of Trust,
<br />which subordination shall be automatic.
<br />5. SUBORDINATING PARTY'S RIGHT TO CURE DEFAULTS. Upon the occurrence of an
<br />Event of Default, Bank shall: (a) concurrently with notifying Borrower of the occurrence of such event of
<br />default, notify Subordinating Party at its address set forth above of the occurrence of such event of default;
<br />(b) permit Subordinating Party to cure or correct (provided that such event of default is curable) any such
<br />event of default within thirty (30) calendar days after receipt of such notice ("Subordinating Party Cure
<br />Period"); provided, however, that Governmental Lender and Bank have the continuing right to commence
<br />to pursue their respective remedies under the Borrower Loan Documents on account of such default during
<br />the Subordinating Party Cure Period, including but not limited to the right to accelerate the Borrower Loan,
<br />-3-
<br />4825-9439-0424v.3 0096250-000020
<br />80A-265
<br />
|