THE
INTERCREDITOR AGREEMENT TO PAY OVER ANY PAYMENT OR DISTRIBUTION OF ASSETS,
WHETHER IN CASH, PROPERTY OR SECURITIES WHICH IS APPLIED TO THE DEBT, INCLUDING,
WITHOUT LIMITATION, ANY PROCEEDS OF THE PROPERTY PREVIOUSLY RECEIVED BY LENDER
ON ACCOUNT OF THE LOAN TO THE MORTGAGE LENDER, THEN BORROWER AGREES THAT ANY
AMOUNTS SO PAID SHALL BE DEEMED TO CONTINUE TO BE OWING PURSUANT TO THE LOAN
DOCUMENTS AS PART OF THE DEBT NOTWITHSTANDING THE PRIOR RECEIPT OF SUCH PAYMENT
BY LENDER.
79
9.6
DISCUSSIONS WITH MORTGAGE LENDER.
IN CONNECTION WITH THE EXERCISE
OF ITS RIGHTS SET FORTH IN THE LOAN DOCUMENTS, LENDER SHALL HAVE THE RIGHT AT
ANY TIME TO DISCUSS THE PROPERTY, THE MORTGAGE LOAN, THE LOAN OR ANY OTHER
MATTER DIRECTLY WITH MORTGAGE LENDER OR MORTGAGE LENDER'S CONSULTANTS, AGENTS OR
REPRESENTATIVES WITHOUT NOTICE TO OR PERMISSION FROM BORROWER OR ANY OTHER LOAN
PARTY, NOR SHALL LENDER HAVE ANY OBLIGATION TO DISCLOSE SUCH DISCUSSIONS OR THE
CONTENTS THEREOF WITH BORROWER OR ANY OTHER LOAN PARTY.
9.7
INDEPENDENT APPROVAL RIGHTS.
IF ANY ACTION, PROPOSED ACTION OR
OTHER DECISION IS CONSENTED TO OR APPROVED BY MORTGAGE LENDER, SUCH CONSENT OR
APPROVAL SHALL NOT BE BINDING OR CONTROLLING ON LENDER.
BORROWER HEREBY
ACKNOWLEDGES AND AGREES THAT (I) THE RISKS OF MORTGAGE LENDER IN MAKING THE
MORTGAGE LOAN ARE DIFFERENT FROM THE RISKS OF LENDER IN MAKING THE LOAN, (II) IN
DETERMINING WHETHER TO GRANT, DENY, WITHHOLD OR CONDITION ANY REQUESTED CONSENT
OR APPROVAL MORTGAGE LENDER AND LENDER MAY REASONABLY REACH DIFFERENT
CONCLUSIONS, AND (III) LENDER HAS AN ABSOLUTE INDEPENDENT RIGHT TO GRANT, DENY,
WITHHOLD OR CONDITION ANY REQUESTED CONSENT OR APPROVAL BASED ON ITS OWN POINT
OF VIEW.
FURTHER, THE DENIAL BY LENDER OF A REQUESTED CONSENT OR APPROVAL IN
ACCORDANCE WITH THE LOAN DOCUMENTS SHALL NOT CREATE ANY LIABILITY OR OTHER
OBLIGATION OF LENDER IF THE DENIAL OF SUCH CONSENT OR APPROVAL RESULTS DIRECTLY
OR INDIRECTLY IN A DEFAULT UNDER THE MORTGAGE LOAN, AND BORROWER HEREBY WAIVES
ANY CLAIM OF LIABILITY AGAINST LENDER ARISING FROM ANY SUCH DENIAL.
10.
MISCELLANEOUS
10.1
EXCULPATION.
(A)
SUBJECT TO THE QUALIFICATIONS BELOW, LENDER SHALL
NOT ENFORCE THE LIABILITY AND OBLIGATION OF BORROWER TO PERFORM AND OBSERVE THE
OBLIGATIONS CONTAINED IN THE LOAN DOCUMENTS BY ANY ACTION OR PROCEEDING WHEREIN
A MONEY JUDGMENT SHALL BE SOUGHT AGAINST BORROWER, EXCEPT THAT LENDER MAY BRING
A FORECLOSURE ACTION, AN ACTION FOR SPECIFIC PERFORMANCE OR ANY OTHER
APPROPRIATE ACTION OR PROCEEDING TO ENABLE LENDER TO ENFORCE AND REALIZE UPON
ITS INTEREST AND RIGHTS UNDER THE LOAN DOCUMENTS, OR IN THE COLLATERAL OR ANY
OTHER COLLATERAL GIVEN TO LENDER 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 BORROWER ONLY TO THE EXTENT OF
BORROWER'S INTEREST IN THE COLLATERAL AND IN ANY OTHER COLLATERAL GIVEN TO
LENDER, AND LENDER SHALL NOT SUE FOR, SEEK OR DEMAND ANY DEFICIENCY JUDGMENT
AGAINST BORROWER IN ANY SUCH ACTION OR PROCEEDING UNDER OR BY REASON OF OR UNDER