OR PAYABLE
(OTHER THAN ACTS COMMITTED BY A THIRD PARTY NON-AFFILIATED PROPERTY MANAGER)
(EXCEPT TO THE EXTENT THAT SUCH APPLICATION OF SUCH FUNDS IS PREVENTED BY
BANKRUPTCY,
RECEIVERSHIP, OR SIMILAR JUDICIAL PROCEEDING IN WHICH BORROWER IS
LEGALLY PREVENTED FROM DIRECTING THE DISBURSEMENT OF SUCH SUMS);
(5) MISAPPROPRIATION (INCLUDING FAILURE TO TURN OVER TO LENDER ON DEMAND
FOLLOWING AN EVENT OF DEFAULT) OF TENANT SECURITY DEPOSITS AND RENTS COLLECTED
IN ADVANCE, OR OF FUNDS HELD BY BORROWER FOR THE BENEFIT OF ANOTHER PARTY (OTHER
THAN ACTS COMMITTED BY A THIRD PARTY NON-AFFILIATED PROPERTY MANAGER); (6) THE
FAILURE TO PAY TAXES, PROVIDED THAT BORROWER SHALL NOT BE LIABLE (A) TO THE
EXTENT FUNDS TO PAY SUCH AMOUNTS ARE AVAILABLE IN THE TAX AND INSURANCE
SUBACCOUNT AND LENDER FAILED TO PAY SAME OR HAS ELECTED NOT TO PAY THE SAME
PURSUANT TO SECTION 3.3 OR (B) RENTS ARE INSUFFICIENT TO YIELD SUFFICIENT FUNDS
TO PAY SUCH AMOUNTS; (7) THE BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR
INDEMNIFICATION IN ANY LOAN DOCUMENT CONCERNING ENVIRONMENTAL LAWS OR HAZARDOUS
SUBSTANCES, INCLUDING, WITHOUT LIMITATION, SECTIONS 4.21 AND 5.8, AND CLAUSES
(VIII) THROUGH (XI) OF SECTION 5.30; (8) THE BREACH OF THE COVENANTS SET FORTH
IN SECTION 5.13 (OTHER THAN A BREACH OF ANY OF THE COVENANTS DESCRIBED IN
CLAUSES (X) AND (XXI) (WITH RESPECT TO UNSECURED TRADE PAYABLES) SET FORTH IN
THE DEFINITION OF "SPECIAL PURPOSE BANKRUPTCY REMOTE ENTITY" ON SCHEDULE 5, IF
THE SAME OCCURS AS A RESULT OF THE ECONOMIC PERFORMANCE OF THE PROPERTY); AND/OR
(9) BORROWER OR GUARANTOR OR ANY OF THEIR DIRECT OR INDIRECT AFFILIATES TAKING
ANY ACTION OR MAKING ANY OMISSION INTENDED OR
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REASONABLY LIKELY TO HINDER, DELAY, IMPAIR OR PREVENT LENDER IN OR FROM
ENFORCING ANY AND ALL OF ITS RIGHTS AND REMEDIES UNDER OR PURSUANT TO THE LOAN
DOCUMENTS OR AT LAW OR IN EQUITY (UNLESS THE SAME IS BROUGHT IN GOOD FAITH AND
IS DETERMINED IN FAVOR OF BORROWER OR GUARANTOR PURSUANT TO A FINAL,
NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION).
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY
OF THE LOAN DOCUMENTS, (A) LENDER SHALL NOT BE DEEMED TO HAVE WAIVED ANY RIGHT
WHICH LENDER MAY HAVE UNDER SECTION 506(A), 506(B), 1111(B) OR ANY OTHER
PROVISIONS OF THE U.S. BANKRUPTCY CODE TO FILE A CLAIM FOR THE FULL AMOUNT OF
THE DEBT OR TO REQUIRE THAT ALL COLLATERAL SHALL CONTINUE TO SECURE ALL OF THE
DEBT IN ACCORDANCE WITH THE LOAN DOCUMENTS, AND (B) LENDER'S AGREEMENT NOT TO
PURSUE PERSONAL LIABILITY OF BORROWER AS SET FORTH ABOVE SHALL BECOME NULL AND
VOID AND SHALL BE OF NO FURTHER FORCE AND EFFECT, AND THE DEBT SHALL BE FULLY
RECOURSE TO THE BORROWER IN AN AMOUNT EQUAL TO THE GREATER OF (X) LENDER'S
LOSSES ARISING OUT OF OR IN CONNECTION WITH THE FOLLOWING MATTERS OR (Y) AN
AMOUNT EQUAL TO THE UNPAID BALANCE OF THE DEBT, IN THE EVENT THAT ONE OR MORE OF
THE FOLLOWING OCCURS (EACH, A "SPRINGING RECOURSE EVENT"): (I)