80A - HOUSING AND SUBORDINATION LOANS

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EXHIBIT 5 such a proceeding involving Borrower, neither Subordinating Party nor any of its affiliates shall (I) make or participate In a loan facility to or for the benefit of Borrower on a basis that is senior to or par! passu with the liens and interests held by Governmental Lender and Bank pursuant to the Borrower Loan Documents and (!I) not contest the continued accrual of Interest on the Borrower Loan, In accordance with and at the rate specified in the Borrower Loan Documents, both for periods before and for periods after commencement of such proceedings. 12. ATTORNEYS' FEES. If either Subordinating Party, Governmental Lender or Bank shall bring an action against the other by reason of the breach of any covenant, provision, or condition of this Agreement, or otherwise arising out of this Agreement, the unsuccessful party shall pay to the prevailing party reasonable attorneys' fees, which fees shall be payable whether or not any action Is prosecuted to judgment. The term "prevailing party" shall Include, without limitation, a party who brings an action against the other by reason of the other's breach or default and obtains substantially the relief sought, whether by compromise, settlement, orjudgment. 13. ESTOPPEL CERTIFICATES. Either party shall, within twenty (20) days following the other party's written request therefor, execute and deliver to such requesting party an estoppel certificate in form and substance reasonably satisfactory to the requesting party. 14. GOVERNING JURISDICTION. This Agreement shall be governed by the laws of the State of California and shall be binding upon, and shall inure to the benefit of, the parties to this Agreement and their respective successors and assigns. 15. SEVERABILITY. In case one or more of the provisions contained in this Agreement shall for any reason be held to be Invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof and this Agreement shall be construed as if such Invalid, illegal or unenforceable provision had never been contained herein unless the effect thereof would materially alter the benefits or burdens hereof to the parties hereto. 16. THIRD PARTIES. Subordinating Party recognizes that Governmental Lender and Bank may show copies of this Agreement to other Institutional lenders who are interested in the matters covered In this Agreement and Subordinating Party agrees that such other institutional lenders may also materially rely upon the representations, warranties and agreements made by the Subordinating Party In this Agreement. 17. COUNTERPARTS. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original but all of which together shall constitute but one and the same Instrument. 18, WAIVER OF JURY TRIAL. To the extent permitted by law, In connection with any action or proceeding, whether brought in state or federal court, the Subordinating Party and Bank hereby expressly, intentionally and deliberately waive any right they may otherwise have to trial by jury of any Claim (as defined below). 19. JUDICIAL REFERENCE. If the waiver of jury trial set forth herelnabove Is not enforceable under the laws of the state in which the Property Is located, then the parties hereby agree that all Claims, Including any and all questions of law or fact relating thereto, shall, at the written request of any party, be determined by Reference (as hereinafter defined) as set forth hereinbelow: (a) Selection Or Appointment Of Referee. The Bank and Subordinating Party shall select a single neutral referee, who shall be a retired state or federal judge. In the event that the Bank and Subordinating Party cannot agree upon a referee, the referee shall be appointed by the court. (b) Conduct Of Reference. Except as otherwise provided In this Agreement, the Reference shall be conducted pursuant to the laws of the state in which the Property is located. The referee -8- 4825-9439-0424v.3 0096250-000020 80A-270