CONSTITUTE A PROHIBITION AGAINST LENDER COMMENCING ANY OTHER
APPROPRIATE ACTION OR PROCEEDING IN ORDER FOR LENDER TO EXERCISE ITS REMEDIES
AGAINST THE PROPERTY.
IN ADDITION, THE FOREGOING SHALL NOT BE DEEMED A WAIVER
OF THE RIGHT OF LENDER TO ENFORCE THE LIABILITY AND OBLIGATION OF BORROWER, BY
MONEY JUDGMENT OR OTHERWISE, TO THE EXTENT OF ANY LOSS, DAMAGE, COST, EXPENSE,
LIABILITY, CLAIM OR OTHER OBLIGATION INCURRED BY LENDER (INCLUDING ATTORNEYS'
FEES AND COSTS REASONABLY INCURRED) ARISING OUT OF OR IN CONNECTION WITH THE
FOLLOWING:
(I)
THE MISAPPLICATION OR MISAPPROPRIATION OF RENTS;
(II)
THE MISAPPLICATION OR MISAPPROPRIATION OF INSURANCE PROCEEDS OR
AWARDS;
(III)
BORROWER'S FAILURE TO RETURN OR TO REIMBURSE LENDER FOR ALL
PERSONAL PROPERTY (OTHER THAN PERSONAL PROPERTY NOT MATERIAL TO THE OPERATION OR
VALUE OF THE PROPERTY) TAKEN FROM THE PROPERTY BY OR ON BEHALF OF BORROWER AND
NOT REPLACED WITH PERSONAL PROPERTY OF THE SAME UTILITY AND OF THE SAME OR
GREATER VALUE;
(IV)
ANY ACT OF ACTUAL WASTE OR ARSON BY BORROWER, ANY PRINCIPAL,
AFFILIATE, GENERAL PARTNER OR MEMBER THEREOF OR BY GUARANTOR;
(V)
ANY FEES OR COMMISSIONS PAID BY BORROWER TO ANY PRINCIPAL,
AFFILIATE, GENERAL PARTNER OR MEMBER OF BORROWER OR ANY GUARANTOR IN VIOLATION
OF THE TERMS OF THIS GUARANTY, THE OTHER LOAN DOCUMENTS;
(VI)
BORROWER'S FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 9.4 OF
THE SECURITY INSTRUMENT; OR
(VII)
ANY FRAUD, WILLFUL MISCONDUCT OR INTENTIONAL MATERIAL
MISREPRESENTATION BY BORROWER, PRINCIPAL, GUARANTOR OR ANY OF THEIR RESPECTIVE
AFFILIATES IN CONNECTION WITH THE LOAN; OR
(VIII)
ANY BREACH OR DEFAULT OF ANY MATERIAL PROVISION OF SECTION 4.1.30 OF
THIS AGREEMENT (OTHER THAN BREACHES OF THE REQUIREMENTS SET FORTH IN CLAUSES
(XII) OR (XXIII) OF THE DEFINITION OF SPECIAL PURPOSE ENTITY).
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE
NOTE 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 BANKRUPTCY CODE TO FILE A CLAIM FOR THE FULL AMOUNT OF
THE DEBT SECURED BY THE SECURITY INSTRUMENT OR TO REQUIRE THAT ALL COLLATERAL
SHALL CONTINUE TO SECURE ALL OF THE DEBT OWING TO LENDER IN ACCORDANCE WITH THE
LOAN DOCUMENTS, AND (B) THE DEBT SHALL BE FULLY RECOURSE TO BORROWER IN THE
EVENT OR: (I) A VOLUNTARY BREACH OR DEFAULT UNDER SECTION 5.2.10 OF THIS
AGREEMENT, (II) BORROWER OR PRINCIPAL FILING A VOLUNTARY PETITION UNDER THE
BANKRUPTCY CODE OR ANY OTHER FEDERAL OR STATE BANKRUPTCY OR INSOLVENCY LAW;
(III) BORROWER OR PRINCIPAL FILING AN
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ANSWER CONSENTING TO OR OTHERWISE ACQUIESCING IN OR JOINING IN ANY INVOLUNTARY
PETITION FILED AGAINST IT, BY ANY OTHER PERSON UNDER THE BANKRUPTCY CODE OR ANY
OTHER FEDERAL OR STATE BANKRUPTCY OR INSOLVENCY LAW, OR SOLICITING OR CAUSING TO
BE SOLICITED PETITIONING CREDITORS FOR ANY INVOLUNTARY PETITION FROM ANY PERSON;
(IV) BORROWER OR PRINCIPAL CONSENTING TO OR ACQUIESCING IN OR JOINING IN AN
APPLICATION FOR THE APPOINTMENT OF A CUSTODIAN, RECEIVER, TRUSTEE, OR EXAMINER
FOR