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EXHIBIT 5
<br />record a notice of default and to obtain a receiver; provided further, that If the cure Is completed during the
<br />Subordinating Party Cure Period, Governmental Lender and Bank will rescind any notice of default after
<br />reimbursement of all of its costs incurred In connection with the default, including, without limitation,
<br />attorneys' fees and court costs; and (c) accept all payments and all acts done by Subordinating Party on
<br />behalf of Borrower within the Subordinating Party's Cure Period as though the same had been timely done
<br />and performed by Borrower, so that such acts and payments shall fully and totally cure and correct all such
<br />defaults, breaches, failures or refusals for all purposes. Subordinating Party shall not be subrogated to the
<br />rights of Governmental Lender or Bank under the Borrower Loan Documents by reason of Subordinating
<br />Party having cured any default under the Borrower Loan Documents; however, Governmental Lender and
<br />Bank acknowledge that, to the extent so provided in the Subordinating Party's Security Documents,
<br />amounts advanced or expended by Subordinating Party to cure an event In default under the Borrower
<br />Loan Documents may be added to and become a party of the Subordinating Parry's Loan. In the event
<br />that an Event of Default occurs and Bank has recorded a notice of default, then for the period from the date
<br />of recordation of the notice of default, until the date of recordation of a notice of sale, so long as the noticed
<br />default continues, Subordinating Partyshall have the right, but notthe obligation, in lieu of curing any default
<br />under the Borrower Loan Documents, to purchase the Funding Loan Note and the Funding Loan Agreement
<br />and Bank's rights as agent thereunder subject to Subordinating Party satisfying any requirements under
<br />the Funding Loan Agreement to purchase the Funding Loan Note. Such purchase will be accomplished by
<br />Subordinating Party paying to Bank the outstanding principal amount of the Borrower Loan, plus all accrued
<br />and unpaid interest thereon and any prepayment premium, together with reasonable expenses incurred by
<br />Bank in connection therewith (including reasonable attorneys' fees and costs), in exchange for the
<br />assignment of the Funding Loan Note without recourse or warranty, except that Bank will warrant that it
<br />owns and has all requisite authority to transfer the Funding Loan Note at the time of the transfer.
<br />Subordinating Party acknowledges and agrees that Subordinating Party's right to purchase the Funding
<br />Loan Note shall unconditionally be and remain at all times subordinate to any right of any senior lender with
<br />lien priority to purchase the Funding Loan Note. Borrower acknowledges and agrees, by executing the
<br />joinder attached hereto, that after the Funding Loan Note has been assigned to Subordinating Party or its
<br />nominee, Bank shall be relieved from all liability to Borrower under or in connection with the Borrower Loan
<br />Documents.
<br />6. BANK RIGHT TO CURE DEFAULT UNDER SUBORDINATING PARTY'S LOAN. Upon
<br />the occurrence of a default under the Subordinating Party's Loan, Subordinating Party shall: (a)
<br />concurrently with notifying Borrower of the occurrence of such event of default, notify Bank at its address
<br />set forth above of the occurrence of such default or event of default; (b) permit Bank to cure or correct
<br />(provided that such event of default is curable) any such event of default within thirty (30) calendar days
<br />after receipt of such notice ("Bank Cure Period"); provided, however, that Subordinating Party has the
<br />continuing right to commence to pursue its remedies under the Subordinating Parry's Loan Documents on
<br />account of such default during the Bank Cure Period, Including but not limited to the right to accelerate the
<br />Subordinating Party's Loan, record a notice of default and to obtain a receiver; provided further, that if the
<br />cure is completed during the Bank Cure Period, Subordinating Party will rescind any notice of default after
<br />reimbursement of all of its costs incurred in connection with the default, including, without limitation,
<br />attomeys' fees and court costs; and (c) accept all payments and all acts done by Bank on behalf of Borrower
<br />within the Bank Cure Period as though the same had been timely done and performed by Borrower, so that
<br />such acts and payments shall fully and totally cure and correct all such defaults, breaches, failures or
<br />refusals for all purposes.
<br />7. SUBORDINATION TO PERMANENT FINANCING. Subordinating Party acknowledges
<br />that it has been advised by Borrower that Borrower intends to repay a portion of the amount outstanding
<br />under the Borrower Loan, In whole or in part, by obtaining permanent financing In the future by one or more
<br />lenders, which permanent financing would be secured by, among other things, a deed of trust or deeds of
<br />trust encumbering the Project which would be senior to the effect of Subordinating Party's Security
<br />Documents (but not to the Restrictions, other than Sections 3.4 and 18 of the Restrictions. In order to
<br />enable Borrower (or its successors or assigns, "Borrower's Successor") to obtain permanent financing to
<br />repay the Borrower Loan, Subordinating Party hereby agrees that within twenty (20) days after written
<br />request by Borrower or Borrower's Successor, Subordinating Party shall execute a subordination
<br />agreement (In form and substance substantially similar to this Agreement) subordinating the effect of
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<br />4825-9439-0424v.3 0096250-000020
<br />80A-266
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