HEREBY EXPRESSLY, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (I) ARISING UNDER THIS MEZZANINE NOTE, INCLUDING, WITHOUT
LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (II) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO THIS MEZZANINE NOTE (AS NOW OR HEREAFTER MODIFIED)
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE
WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
MEZZANINE BORROWER HEREBY AGREES AND CONSENTS THAT AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT HERETO TO THE WAIVER OF ANY RIGHT TO TRIAL BY JURY.
MEZZANINE BORROWER
ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL COUNSEL REGARDING THE MEANING OF
THIS WAIVER AND ACKNOWLEDGES THAT THIS WAIVER IS AN ESSENTIAL INDUCEMENT FOR THE
MAKING OF THE MEZZANINE LOAN.
THIS WAIVER SHALL SURVIVE THE REPAYMENT OF THE
MEZZANINE LOAN.
l.
Counterclaims and other Actions.
Mezzanine Borrower
hereby expressly and unconditionally waives, in connection with any suit, action
or proceeding brought by Mezzanine Lender on this Mezzanine Note, any and every
right it may have to (i) interpose any counterclaim therein (other than a
counterclaim which can only be asserted in the suit, action or proceeding
brought by Mezzanine Lender on this Mezzanine Note and cannot be maintained in a
separate action) and (ii) have any such suit, action or proceeding consolidated
with any other or separate suit, action or proceeding.
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12
IN WITNESS WHEREOF, Mezzanine Borrower has caused this Mezzanine Note to be
executed and delivered as of the day and year first above written.
MEZZANINE BORROWER:
CNL RESORT JUNIOR MEZZ, LP,
a Delaware limited partnership
By:
CNL Resort Junior Mezz GP, LLC,
a Delaware limited partnership,
its sole general partner
By:
/s/ Paul H. Williams
Name:
Paul H. Williams
Title:
Senior Vice President