THIS INSTRUMENT PREPARED BY AND AFTER RECORDING RETURN TO: lb Fu right Jaworski L.L.P. 2800 Ross Avenue, Suite 2800 5 0921 12 Dallas, Texas 75201 02,07 Arm: Scott Rawdin PITKIN coururv co 61.00 0-00 SUBORDINATION AND ATTORNMENT AGREEMENT This SUBORDINATION AND ATTORNMENT AGREEMENT ("Agreement") is made and entered into as of April 8, 2004, by and among BANK OF AMERICA, N.A., a national banking association ("Lender"); ASPEN PROPERTIES HOLDINGS, L.P., a Delaware limited partnership ("Borrower"), and DAVID BONDERMAN, an individual ("Lessee"). A. Lender is the owner and holder of that certain Term Note (the "Note"), in the principal sum of $l5,000,000, executed by Borrower, payable to the order of Lender and secured, in part, by that certain Deed of Trust, Security Agreement, and Financing Statement (the "Deed of Trust"), and that certain Assignment of Leases (_"Assignment") (said Deed of Trust and Assignment, as they may be subsequently amended or modified from time to time, being collectively called the "Mortgage"), executed by Borrower for the benefit of Lender, which Mortgage constitutes or will constitute liens on the land described on Exhibit and the improvements now or hereafter located on the Land (collectively, the "Pr0perty"); and B. Lessee is the holder of a leasehold estate in and to all or a portion of the Property (the portion of the Property which is the subject of such leasehold estate being referred to as the "Demised Premises'") pursuant to the terms of that certain lease agreement dated as of April l, 2004 (as amended to date, the "Lease") and executed by and between Lessee, as the tenant, and Borrower, as the landlord; C. Borrower, Lessee and Lender desire to confirm their understandings with respect to the Lease and the Mortgage. NOW, THEREFORE, in consideration of the mutual and dependent covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged and confessed, the parties agree and covenant as follows: l. Subordination. Subject to the terms of this Agreement, the Lease now is, and shall at all times continue to be, subject, inferior and subordinate in each and every respect to the lien of the Mortgage and to any and all renewals, amendments, modifications, extensions, substitutions, replacements, increases and/or consolidations of the Mortgage and/or Note. This Agreement shall be the only agreement relating to the subordination of the Lease to the lien of the Mortgage and shall supersede and cancel insofar as same may affect the priority between the Mortgage and the Lease, any prior agreements or provisions relating to the subordination of the Subordination and Attornment Agreement Bank of America/Aspen Properties Holdings, L.P. 454427663 - Lease to the lien of the Mortgage, including, without limitation, those provisions, if any, contained in the Lease which provide for the subordination thereof to the lien of any deed of trust, mortgage or other security agreement. Nothing contained in this Agreement shall be deemed or construed as limiting or restricting the enforcement by Lender of any of the terms, covenants, provisions or remedies specified in the Mortgage, whether or not consistent with the Lease, (including, without limitation, any rights, remedies, privileges and recourses of Lender with respect to insurance proceeds and condemnation awards attributable to the Demised Premises or the Property). 2. Attorn . If Lender or its successors or assigns, including any purchaser at judicial or nonjudicial foreclosure sale or similar proceeding (Lender and any such other party being referred to in this Agreement as a "Purchaser"), acquires the Demised Premises and succeeds to the interests of Borrower under the Lease, pursuant to a judicial or nonjudicial foreclosure sale or by the exercise of any of its remedies specified in the Financing Documents (as defined in the Credit Agreement between Borrower and Lender dated of even date with this Agreement), Lessee shall, at Lender's request, be bound to Purchaser in accordance with all of the terms, covenants and conditions of the Lease for the balance of the lease term and any extension thereof duly exercised by Lessee with the same force and effect as if Purchaser were the landlord under the Lease. Upon request by Purchaser, Lessee agrees to attorn to Purchaser, as its landlord, which attornment shall be effective and self-operative, without the execution of any further instruments on the part of any of the parties, immediately upon Purchaser's succeeding to the interest of Borrower under the Lease; provided, however, that Lessee shall be under no obligation to pay rent to Purchaser until Lessee receives written notice from Purchaser that it has succeeded to the interest of Borrower under the Lease, and upon receipt of such notice, Lessee shall pay to Purchaser all rental and other payments required under the Lease for the duration of the term of the Lease and any extensions thereof duly exercised by Lessee. The respective rights and obligations of Lessee and Purchaser upon such attornment, to the extent of the then remaining balance of the term of the Lease and any extension thereof duly exercised, shall be and are the same as now set forth in the Lease, it being the intention of the parties for this purpose to incorporate the Lease in this Agreement by reference, with the same force and effect as if expressly set forth in this Agreement. 3. Purchaser's Obligations. If Purchaser shall succeed to the interest of Borrower under the Lease, if Purchaser elects to recognize the Lease, Purchaser shall be bound to Lessee under all of the terms, covenants and conditions of the Lease; provided, however, that Purchaser shall not be: liable for any act or omission of any prior lessor (including Borrower) under the Lease; or subject to any offsets or defenses which Lessee might have against any prior lessor (including Borrower) under the Lease; or bound by any rent, additional rent, advance rent or other monetary obligations which Lessee might have paid for more than the then current year to any prior lessor (including Borrower) under the Lease and which is not delivered or paid to Purchaser at the time of Purchaser's succession to title to the Demised Premises, and all Subordination and Attomment Agreement 1 Bank of America/Aspen Properties Holdings, L.P. page 2 of 12 454427663 2 08/17/2004 02 07 SILVIFI PITKIN coururv co 9 00 - - such rent or other monetary obligations shall remain due and owing, notwithstanding such advance payment, and with respect to which Lessee agrees to look solely to Borrower for refund or reimbursement; or bound by any security deposit of any type or advance rental deposit made by Lessee under the Lease which is not delivered or paid to Purchaser at the time of Purchaser's succession to title to the Demised Premises, and with respect to which Lessee agrees to look solely to Borrower for refund or reimbursement; or bound by any amendment, modification, supplementation, termination or cancellation of the Lease made without Lender's or Purchaser's prior written consent and approval; or required to complete the construction of any improvements or otherwise perform the obligations of Borrower under the Lease in the event that Purchaser acquires title to the Property prior to full completion and acceptance by Lessee of any improvements required under the Lease; or liable or responsible under or pursuant to the terms of the Lease after it conveys its interest in or to the Demised Premises; or obligated to cure any defaults under the Lease of any prior lessor (including Borrower) which occurred prior to the date Purchaser obtained title to or took possession of the Property. 4. Negative Covenants. Unless Lender or Purchaser shall have given its written consent, Lessee agrees not to do any of the following: prepay the rent or other monetary obligations under the Lease for more than one year in advance, enter into any agreement, whether oral or written, with Borrower to amend, modify, supplement, replace, restate or otherwise change the Lease, voluntarily surrender the Demised Premises or terminate the Lease, and sublease or assign all or any portion of the Demised Premises or the Lease. 5. Default. In the event Borrower shall fail to perform or observe any of the terms, conditions or agreements in the Lease, Lessee shall give written notice to Lender and Lender shall have the right (but not the obligation) to cure such default. Lessee shall not take any action with respect to such default under the Lease, including without limitation any action in order to terminate, rescind or avoid the Lease or to withhold any rent or other monetary obligations under the Lease, for a period of thirty (30) days following receipt of such written notice by Lender; provided, however, that in the case of any default which cannot with diligence be cured within said thirty (30) day period, if Lender shall proceed to cure such default and thereafter prosecute the curing of such default with diligence and continuity, the time within which such default may be cured shall be extended for such period as may be necessary to complete the curing of such default with diligence and continuity. 6. Liability of Purchaser. Anything in this Agreement or inthe Lease to the contrary notwithstanding, Purchaser shall have no obligation, nor incur any liability, beyond Purchaser's then interest, if any, in the Property (including any title and casualty insurance proceeds and condemnation awards actually paid to Lender), and Lessee shall look exclusively to such interest Subordination and Attomment Agreement Bank of America/Aspen Properties Holdm 9 'l s, - 454421665 3 Page 3 nf 12 08/17/2004 02 a DRVIS Pitkin coumrv co 61.00 0 oo . -.- M-w of Purchaser in the Property for the payment and discharge of any obligations which may be imposed upon Purchaser under this Agreement or under the Lease. 7. Notices. All notices or other communications required or permitted to be given pursuant to the provisions of this Agreement shall be in writing and shall be considered as properly given if mailed to the addressee by first class United States mail, postage prepaid, registered or certified with return receipt requested, (ii) by delivering same in person to the addressee, or by delivery to a third party commercial delivery service for same day or next day delivery to the office of the addressee with proof of delivery. Notice so given shall be effective, as applicable, upon its deposit with the U.S. Postal Service, (ii) delivery to the addressee, or upon delivery to such third party delivery service. Notice given in any other manner shall be effective only if and when received by the addressee. For purposes of notice, the addresses of the parties shall be: Lender: Bank of America, N.A. Unit 36 500 West 7th Street; Suite 1300 Fort Worth, Texas 76102 Borrower: Aspen Properties Holdings, L.P. 301 Commerce Street, Suite 3300 Fort Worth, Texas 76102 Lessee: David Bonderman 301 Commerce Street, Suite 3300 Fort Worth, Texas 76102 Notwithstanding the foregoing, any party shall have the right to change its address for notice to any other location within the continental United States by the giving of thirty (30) days' notice to the other parties in the manner set forth in this Section. 8. Countegparts. This Agreement may be executed in any number of counterparts each of which shall be deemed to be an original but all of which when taken together shall constitute one agreement. 9. No Oral Change. This Agreement may not be modified, amended, waived, extended, changed, discharged, or terminated orally, or by any act or failure to act on the part of any party, but only by an agreement in writing signed by the party against whom the enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought. 10. Successors. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. ll. Remedies Cumulative. All remedies provided for in this Agreement are cumulative and shall be in addition to, but not in lieu of, any and all other rights and remedies 506921 Subordination and Attornment Agreement Page: 4 of 12 Bank of America/Aspen Properties Holdings, 08/ 17/ 2004 02 07 4544216613 4 SILVI9 DQVIS PITKIN COUNTY provided by law and by any and all other agreements between Lender and either Borrower or Lessee. 12. Further Assurances. At the request of Lender, Borrower and Lessee shall execute, acknowledge, and deliver such other doctunents and/or instruments as may be reasonably required by Lender in order to effectuate the intent and purpose of this Agreement; provided, however, that no such document or instrument shall modify the rights and obligations of Borrower and Lessee as provided in this Agreement. 13. Attorneys' Fees. The prevailing party in any action brought against the other parties to enforce any rights, obligations or duties under this Agreement shall be entitled to recover from the nonperforming party the prevailing party's reasonable costs and expenses (including attorneys' fees) incurred in connection with the enforcement of this Agreement. 14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the state in which the Property is located. 15. Termination. This Agreement shall be of no further force and effect and shall become null and void upon the recording of a release of the lien of the Mortgage in the applicable real property records . 16. Cancellation of Lease. Notwithstanding anything to the contrary contained in this Agreement, if Lender shall succeed to the interest of Borrower under the Lease following a Default under the Mortgage, Lender may, at its election and regardless of whether or not there is a default by Lessee under the Lease, either cancel the Lease by giving Lessee at least thirty days' prior written notice specifying the date of cancellation, such notice to be given within thirty days after Lender succeeds to Borrower's interest, or keep the Lease in effect and adjust the base rent to equal the current market rent for comparable property leased under similar terms and conditions. ISIGNATURE PAGES ll Ill Ill @2312 08/17/2004 02107 SILVIR DQVIS PITKIN COUNTY C0 61.00 0.00 Subordination and Attomment Agreement Bank of America/Aspen Properties Holdings, L.P. 5 EXECUTED as of the day and year first above written. LENDER: BANK OF AMERICA, N.A., a national banking association v?L --J., Name: . Title: 1 STATE or TEXAS COUNTY OF TARRANT The foregoing instrument was acknowledged before me this day of April 2004 7 3 Kirk G. French, Vice President of Bank of America, N.A., a national banking association. Witness my hand and official seal. My commission expires: 9 7 7- ff 5?/gg 27-/f Notary Public (SEAL) Q, . CAROLYN SMMS Notary Public - State of Texas ,f Noraav Puauc I 15' STATEOFTEXAS ff/ /77; Ip My comm. Exp. os-23-oe 2 . i Printed Name of Notary g- _-it My Commission Expires: DFWIS PITKIN COUNTY C0 51 .00 0.00 Subordination and Attornment Agreement Bank of America/Aspen Properties Holdings, L.P. 454427663 6 - -- -- EXECUTED as ofthe day and year first above written BORROWER: ASPEN PROPERTIES HOLDINGS, L.P., a Delaware limited partnership By: Aspen Properties Holdings LLC, its sole general partner By: 1 David Bonderman, its sole member STATE OF TEXAS TARRANT COUNTY The foregoing instrument was acknowledged before me this day of April, 2004, by David Bonderman, as sole member of Aspen Properties Holdings LLC, the sole general partner of Aspen Properties Holdings, L.P., a Delaware limited partnership. Witness my hand and oflicia eal My commission expires: Tl . - ANN Notary Public mmwoff I JULY 2808/17/2004 02207 SILVIFI DFNIS PITKIN COUNTY C0 61.00 0.00 Subordination and Attornment Agreement Bank of America/Aspen Properties Holdings, L.P. 45442?66_3 7 - - EXECUTED as of the day and year first above written LESSEE: DAVID BONDERMAN, an individual STATE OF TEXAS TARRANT COUNTY The foregoing instalment was acknowledged before me this day of April, 2004, by David Bonderman, an individual. Witness my hand and offioi eal. My commission expires: i . Notary Public EBEIER - Notary Publkl. SW9 ?fT?*Page: of 12 08/17/2004 02: 7 SILVIR DFWIS PITKIN COUNTY C0 61.00 0.00 Subordination and Attornment Agreement Bank of America/Aspen Properties Holdings, L.P. 454427663 8 ..-.-- .. -. . EXHIBIT LEGAL DESCRIPTION PARCEL I A parcel of land situated in Sections 9, 16, 17, 20 and 21, Township 9 South, Range 85 West of the 61h P.M. being the remaining portion of The Cozy Point Ranch, Lots 2, 3, and 4 of The Cozy Point Ridge Subdivision recorded in Plat Book 22 at Page 26 of the Pitkin County records and The "Elay Parcel" described in Exhibit of Book 228 at Page 599 of the Pitkin County records described as follows: Beginning at the Northeast Comer of Section 17 (1913) GLO Brass Cap in place; thence 00"03'32" 690.88 feet along the Westerly line of Section 9 to the Southwesterly right of way of Colorado State Highway No. 82 as shown on R.O.W. Map No. 6 of the Colorado Department of Highways Fed. Aid Project NRS 383; thence Southeasterly along the Southwesterly right of way of Colorado State Highway No. 82 as follows: 41?33'37" 657.55 feet; 48?26'26" 10.00 feet; 41?33'37" 569.69 feet to the Northeast Corner of the Thomas Daly Ranch as described in Book 701 at Page 263 of the Pitkin County records; thence Southerly around said Book 701 at Page 263 as follows: 69?23'59" 674.16 feet; 20?21'49" 3,989.84 feet; 07?0l'32" 1,942.73 feet to the Northeasterly corner of The "Elay Parcel" as described in Exhibit of Book 228 at Page 599 of the Pitkin County records; thence Southerly around said "Elay Parcel" as follows: 03?53'20" 576.86 feet; 197.92 feet along the arc of a curve to the left having a radius of 630.00 feet (chord bears 05?06'40" 370.63 feet along an arc of a curve to the right having a radius of 531.95 feet (chord bears 05?50'56" 5013921 12 08/17/2004 02 56?49'07" 9.70 feet; srtvin nnvis pirxrm coururv co 51.00 0.00 Subordination and Attornment Agreement Bank of America/Aspen Properties Holdings, L.P. 454427663 9 - -- 78?50'24" 8.17 feet to the record point of beginning of Book 228 at Page 599; 56?49'07" 277.06 feet; 39.84 feet along the arc of a curve to the right having a radius of 20.00 feet (chord bears 66?06'53" 09?02'40" 99.75 feet; 225.76 feet along the are of a curve to the left having a radius of 130.00 feet (chord bears 58?47'40" 71?27'20" 75.00 feet; 103.33 feet along the arc of a curve to the left having a radius of 80.00 feet (chord bears 34?27'10" 96.30') to the outside boundary of Brush Creek Village Subdivision Filing No. 2 as platted; thence Southerly and Westerly along the Northerly outside boundary of Brush Creek Village Subdivision Filing No. 2 as platted as follows: 35.63 feet along a non-tangential curve to the left whose radius is 80.00 feet (chord bears 50?00'21" 57.11 feet along the are of a curve to the right whose radius is 70.00 feet (chord bears 39?23'21" 16?01' 88.00 feet; 48.78 feet along the arc of a curve to the left whose radius is 130.00 feet (chord bears 26?46'02" 37?13' 56.00 feet; 222.02 feet along the arc of a curve to the right whose radius is 170.00 feet (chord bears 00?05'5l" 37?19' 93.00 feet; 148.23 feet along the arc of a curve`to the left whose radius is 130.00 feet (chord bears 04?38'55" 48.89 feet along the arc of a curve to the right whose radius is 70.00 feet (chord bears 08?01'31" 11059 99 2 4 2 5131 12 4 02:07 78?01' 489.73 feet; onvrs PITKIN counrv co 61.00 - Subordination and Attornment Agreement Bank of America/Aspen Properties Holdings, 454427663 10 ..-..-.. 48?45' 930.00 feet; 74?45' 430.00 feet; 85?00' 380.00 feet; 73?25' 1018.96 feet; 84?30' 240.00 feet; thence 59?33'57" 0.59 feet to the outside boundary of Brush Creek Village Subdivision as platted; thence Northwesterly around the outside boundary of Brush Creek Village Subdivision as follows: 77?29'24" 264.35 feet; 03?01'00" 125.83 feet; 88?55'00" 60.00 feet to the Easterly line of Lot 1, Cozy Point Ridge Subdivision; thence Westerly around Lot 1, Cozy Point Ridge Subdivision as follows: 01?05'00" 180.00 feet; 45?52'07" 180.89 feet; 60?06'12" 1340.86 feet to the Northeast comer of the Burrell Patch parcel as described in Book 589 at Page 923 of the Pitkin County records; thence 89?09'15" 1418.42 feet to the Westerly line of Section 20; thence 00?00'32" 2372.09 feet along the Westerly line of Section 20 to the Northwest corner of Section 20 (1913 Brass Cap in Place); thence 00?01'19" 1017.95 feet to the Southwest corner of Lot 3, Cozy Point Ridge Subdivision; thence Northerly and Easterly along the outside boundaries of Lots 3 and 4 Cozy Point Ridge Subdivision as follows: 00?01'19" 1442.05 feet to the Witness corner West Corner of Section 17 (1913 GLO Brass Cap); 00?05'29" 3069.09 feet to the Northwest corner of Section 17 (1913 GLO Brass Cap 1 Page: 11 of 12 os/11/2004 o2;ov In ace) 5 0921 SILVIFI DRVIS PITKIN COUNTY C0 51.00 0.00 454427663 1 Subordination and Attornment Agreement Bank of America/Aspen Properties Holdings, L.P. 89?58'14" 1240.00 feet to the Northeast corner of Lot 3, Cozy Point Ridge Subdivision; thence 89?58'14" 1168.48 feet to the South M1 corner of Section 18 (1913 GLO Brass Cap); thence 89?58'01" 2649.98 feet to the Northeast corner of Section 17 the point of beginning. Together with that 40' wide strip of land designated as Cozy Point Way traversing through Lot 1, Cozy Point Ridge Subdivision, according to the recorded Plat of said subdivision. Basis of bearings 89?58'13" 24008.47 between NW Cor. Section 17 and Corner Section 8 (1913 GLO Brass Cap). TOGETHER WITH easements and rights as set forth in Easement Agreement II by and between Cozy Point L.P., a Colorado Limited Partnership and Daly Construction Co., Inc., recorded January 21, 1993 in Book 701 at Page 275. AND COUGAR CANYON P.U.D. according to the Plat thereof recorded December 31, 1998 in Plat Book 48 at Page 22. EXCEPTING FROM the above mentioned parcels that certain parcel conveyed to Pitkin Cotmty recorded December 31, 1998 as Reception No. 426074 and those parcels conveyed to the State of Colorado recorded December 3, 1996 as Reception No. 399616 and Reception No. 399617. PARCEL Il HOMESTEAD 1 WILDCAT RANCH according to the Final P.U.D. for Wild Cat Ranch recorded February 15, 1995 in Plat Book 36 at Page 3 and Second Amendment thereto recorded September 17, 1996 in Plat Book 40 at Page 33. TOGETHER WITH the Road Easements as set forth in Paragraph 8.11 and Wildcat Lake Recreation Easement as set forth in Paragraph 8.14 as set forth in the Declaration of Protective Covenants for Wildcat Ranch, recorded June 14, 1991 in Book 648 at Page 908 and Paragraph 8.15 as set forth in the Sixth Amendment to Declaration of Protective Covenants for Wildcat Ranch, recorded March 11, 1993 in Book 705 at Page 836, TOGETHER WITH a right of ingress and egress as set forth in instruments recorded September 16, 1975 in Book 303 at Page 159, instrument recorded August 19, 1991 in Book 654 at Page 400 and instrument recorded June 12, 1992 in Book 680 at Page 613, subject to the terms, conditions, provisions and obligation of above said Paragraphs. 500921 . Subordrnatlon and Attornment Agreement 0.3, Bank of America/Aspen Properties Holdings, L.P. sr|_vrn onvrs PITKIN coumrv co 61.00 0 00 454427663 12 ,i