Lender:
Bank of America, N.A.
901 Main Street, 20th Floor
Dallas, TX 75202
Attention: Mr. Jamison L. Fox
Telecopy: (214) 209-2090
If to Borrower:
Rest Easy LLC
c/o Actus Lend Lease LLC
1801 West End Avenue
Suite 1700
Nashville, TN 37203
Attention: President
Telecopy: (615) 963-2686
With copies to:
Rest Easy LLC
c/o Actus Lend Lease LLC
700 Lanidex Plaza
Parsippany, NJ 07054
Attention: General Counsel
Telecopy: (973) 503-5730
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, NJ 07068
Attention: Edward J. Hunter, Esq.
Telecopy: (973) 597-2590
27.
PRIORITY.
THE PRIORITIES HEREIN SPECIFIED ARE APPLICABLE
IRRESPECTIVE OF THE TIME OF CREATION OF THE SENIOR LOAN OBLIGATIONS, JUNIOR LOAN
OBLIGATIONS OR THE SUBORDINATE LOAN OBLIGATIONS.
43
28.
FURTHER ASSURANCES.
SO LONG AS THE SENIOR LOAN OBLIGATIONS,
JUNIOR LOAN OBLIGATIONS AND THE SUBORDINATE LOAN OBLIGATIONS REMAIN OUTSTANDING,
EITHER PARTY SHALL EXECUTE, ACKNOWLEDGE, AND DELIVER UPON THE DEMAND OF THE
OTHER PARTY, AT ANY TIME OR TIMES, ANY AND ALL FURTHER DOCUMENTS OR INSTRUMENTS
IN RECORDABLE FORM FOR THE PURPOSE OF FURTHER CONFIRMING THE SUBORDINATION AND
THE AGREEMENTS HEREIN SET FORTH.
29.
ESTOPPEL CERTIFICATE.
EACH OF SENIOR LENDER, JUNIOR LENDER AND
SUBORDINATE LENDER HEREBY AGREES THAT WITHIN TEN (10) DAYS AFTER WRITTEN DEMAND
OF THE OTHER PARTY, IT SHALL EXECUTE, ACKNOWLEDGE AND DELIVER A CERTIFICATION
SETTING FORTH THE TOTAL AMOUNT OF INDEBTEDNESS OWED TO IT UNDER THE SENIOR LOAN
DOCUMENTS, JUNIOR LOAN DOCUMENTS OR THE SUBORDINATE LOAN DOCUMENTS, AS THE CASE
MAY BE, AND SUCH OTHER CERTIFICATIONS AS MAY BE REASONABLY REQUESTED BY THE
OTHER PARTY.
NOTWITHSTANDING THE FOREGOING, NONE OF SENIOR LENDER, JUNIOR
LENDER OR SUBORDINATE LENDER SHALL BE OBLIGATED TO GIVE SUCH CERTIFICATION MORE
FREQUENTLY THAN ONCE EVERY OTHER CALENDAR MONTH.
30.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO THE CONFLICT-OF-LAWS PRINCIPLES THEREOF).
IT IS THE INTENT
AND PURPOSE OF THE PARTIES HERETO THAT THE PROVISIONS OF SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO THIS AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY PROVIDED IN THE FOREGOING, IT IS
ACKNOWLEDGED AND AGREED THAT AS TO MATTERS WHICH RELATE TO THE CREATION,
PERFECTION AND ENFORCEMENT OF SECURITY INTERESTS CREATED UNDER THE SENIOR LOAN
DOCUMENTS, JUNIOR LOAN DOCUMENTS AND SUBORDINATE LOAN DOCUMENTS, THE SAME SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE APPLICABLE
COLLATERAL SHALL BE LOCATED OR, AS TO ACCOUNTS CONSTITUTING COLLATERAL, THE
JURISDICTION DESIGNATED IN THE APPLICABLE SECURITY DOCUMENTATION GOVERNING SUCH
ACCOUNTS AS COLLATERAL.
31.
FORUM.
ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
AGREEMENT SHALL BE TRIED AND LITIGATED IN STATE OR FEDERAL COURTS LOCATED IN THE
STATE AND COUNTY OF NEW YORK AND EACH PARTY TO THIS AGREEMENT HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND IRREVOCABLY CONSENTS TO THE
JURISDICTION OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING.