THIS WAIVER WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT OF THE OTHER
IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY, AND THAT, TO THE FULLEST EXTENT
THAT IT MAY LAWFULLY DO SO, ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN MAKER
AND HOLDER SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A
JUDGE SITTING WITHOUT A JURY.
15.
SALES AND ASSIGNMENTS.
HOLDER MAY ASSIGN, SELL, SECURITIZE,
PARTICIPATE, PLEDGE AND/OR OTHERWISE TRANSFER ALL OR ANY PORTION OF HOLDER'S
RIGHT, TITLE AND INTEREST IN, TO AND UNDER THIS NOTE AND/OR THE OTHER LOAN
DOCUMENTS IN ONE OR MORE TRANSACTIONS AS SET FORTH IN THE LOAN AGREEMENT.
16.
DUE ON SALE; DUE ON ENCUMBRANCE.
MAKER UNDERSTANDS THAT IN MAKING
THE LOAN, HOLDER IS RELYING TO A MATERIAL EXTENT UPON THE BUSINESS EXPERTISE
AND/OR NET WORTH OF MAKER AND, IF MAKER IS ALSO AN ENTITY, ITS PARTNERS,
MEMBERS, OFFICERS OR PRINCIPALS AND UPON THE CONTINUING INTEREST WHICH MAKER OR
ITS PARTNERS, MEMBERS, OFFICERS OR PRINCIPALS WILL HAVE IN THE PROPERTY AND IN
MAKER, RESPECTIVELY, AND THAT A VIOLATION OF SECTION 6.1 OF THE LOAN AGREEMENT
MAY SIGNIFICANTLY AND MATERIALLY ALTER OR REDUCE HOLDER'S SECURITY FOR THIS
NOTE.
ACCORDINGLY, IN THE EVENT THAT A VIOLATION OF SECTION 6.1 OF THE LOAN
AGREEMENT OCCURS, THEN THE SAME SHALL BE DEEMED TO INCREASE THE RISK OF HOLDER
AND HOLDER MAY THEN, OR AT ANY TIME THEREAFTER, DECLARE THE ENTIRE INDEBTEDNESS
IMMEDIATELY DUE AND PAYABLE.
17.
EXCULPATION.
SUBJECT TO THE QUALIFICATIONS BELOW, HOLDER SHALL
NOT ENFORCE THE LIABILITY AND OBLIGATION OF MAKER TO PERFORM AND OBSERVE THE
OBLIGATIONS CONTAINED IN THE LOAN DOCUMENTS BY ANY ACTION OR PROCEEDING WHEREIN
A MONEY JUDGMENT SHALL BE SOUGHT AGAINST MAKER OR ITS AFFILIATES, PRINCIPALS,
SHAREHOLDERS OR MEMBERS, EXCEPT THAT HOLDER MAY BRING A FORECLOSURE ACTION, AN
ACTION FOR SPECIFIC PERFORMANCE OR ANY OTHER APPROPRIATE ACTION OR PROCEEDING TO
ENABLE HOLDER TO ENFORCE AND REALIZE UPON ITS INTEREST AND RIGHTS UNDER THE LOAN
DOCUMENTS, OR IN THE PROPERTY, THE RENTS, THE INSURANCE PROCEEDS, THE
CONDEMNATION PROCEEDS OR ANY OTHER COLLATERAL GIVEN TO HOLDER PURSUANT TO THE
LOAN DOCUMENTS; PROVIDED, HOWEVER, THAT, EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
ANY JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE ENFORCEABLE AGAINST MAKER
ONLY TO THE EXTENT OF MAKER'S INTEREST IN THE PROPERTY, THE RENTS, THE INSURANCE
PROCEEDS, THE CONDEMNATION PROCEEDS AND ANY OTHER COLLATERAL GIVEN TO HOLDER,
AND
6
HOLDER AGREES THAT IT SHALL NOT SUE FOR, SEEK OR DEMAND ANY DEFICIENCY JUDGMENT
AGAINST MAKER IN ANY SUCH ACTION OR PROCEEDING UNDER OR BY REASON OF OR UNDER OR
IN CONNECTION WITH ANY LOAN DOCUMENT.
THE PROVISIONS OF THIS SECTION 17 SHALL
NOT, HOWEVER, (A) CONSTITUTE A WAIVER, RELEASE OR IMPAIRMENT OF ANY OBLIGATION
EVIDENCED OR SECURED BY ANY LOAN DOCUMENT; (B) IMPAIR THE RIGHT OF HOLDER TO
NAME MAKER AS A PARTY DEFENDANT IN ANY ACTION OR SUIT FOR FORECLOSURE AND SALE
UNDER THE MORTGAGE; (C) AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OF THE