LIABILITIES"); PROVIDED,
HOWEVER, THAT BORROWER SHALL NOT HAVE ANY OBLIGATION TO LENDER HEREUNDER TO THE
EXTENT THAT SUCH ADDITIONAL INDEMNIFIED LIABILITIES ARISE FROM THE GROSS
NEGLIGENCE, ILLEGAL ACTS, FRAUD OR WILLFUL MISCONDUCT OF LENDER.
TO THE EXTENT
THAT THE UNDERTAKING TO INDEMNIFY, DEFEND AND HOLD HARMLESS SET FORTH IN THE
PRECEDING SENTENCE MAY BE UNENFORCEABLE BECAUSE IT VIOLATES ANY LAW OR PUBLIC
POLICY, BORROWER SHALL PAY THE MAXIMUM PORTION THAT IT IS PERMITTED TO PAY AND
SATISFY UNDER APPLICABLE LAW TO THE PAYMENT AND SATISFACTION OF ALL ADDITIONAL
INDEMNIFIED LIABILITIES INCURRED BY LENDER.
(C)
BORROWER SHALL, AT ITS SOLE COST AND EXPENSE, PROTECT, DEFEND,
INDEMNIFY, RELEASE AND HOLD HARMLESS LENDER AND THE INDEMNIFIED PARTIES FROM AND
AGAINST ANY AND ALL LOSSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS'
FEES AND COSTS INCURRED IN THE INVESTIGATION, DEFENSE, AND SETTLEMENT OF LOSSES
INCURRED IN CORRECTING ANY PROHIBITED TRANSACTION OR IN THE SALE OF A PROHIBITED
LOAN, AND IN OBTAINING ANY INDIVIDUAL PROHIBITED TRANSACTION EXEMPTION UNDER
ERISA, THE CODE, ANY STATE STATUTE OR OTHER SIMILAR LAW THAT MAY BE REQUIRED, IN
LENDER'S SOLE DISCRETION) THAT LENDER ACTUALLY INCURS AS A RESULT OF A DEFAULT
UNDER SECTIONS 4.1.8 OR 5.2.8 HEREOF.
(D)
BORROWER COVENANTS AND AGREES TO PAY FOR OR, IF BORROWER FAILS TO
PAY, TO REIMBURSE LENDER FOR, ANY CONSENT, APPROVAL, WAIVER OR CONFIRMATION
OBTAINED FROM SUCH RATING AGENCY PURSUANT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND LENDER SHALL BE ENTITLED TO REQUIRE
PAYMENT OF SUCH FEES AND EXPENSES AS A CONDITION PRECEDENT TO THE OBTAINING OF
ANY SUCH CONSENT, APPROVAL, WAIVER OR CONFIRMATION.
Section 10.14
Schedules and Exhibits Incorporated.
The Schedules and Exhibits annexed hereto are hereby incorporated herein as a
part of this Agreement with the same effect as if set forth in the body hereof.
Section 10.15
Offsets, Counterclaims and Defenses.
Any assignee of Lender's interest in and to this Agreement, the Note and the
other Loan Documents shall take the same free and clear of all offsets,
counterclaims or defenses which are unrelated to such documents which Borrower
may otherwise have against any assignor of such documents, and no such unrelated
counterclaim or defense shall be interposed or asserted by Borrower in any
action or proceeding brought by any such assignee upon such documents and any
such right to interpose or assert any such unrelated offset, counterclaim or
defense in any such action or proceeding is hereby expressly waived by Borrower.
Section 10.16
No Joint Venture or Partnership; No Third Party
Beneficiaries.
(A)
BORROWER AND LENDER INTEND THAT THE RELATIONSHIPS CREATED
HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS BE SOLELY THAT OF BORROWER AND
LENDER.
NOTHING HEREIN OR THEREIN IS INTENDED TO CREATE A JOINT VENTURE,
PARTNERSHIP, TENANCY-IN-COMMON, OR JOINT
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TENANCY RELATIONSHIP BETWEEN BORROWER AND LENDER NOR TO GRANT LENDER ANY
INTEREST IN THE PROPERTIES OTHER THAN THAT OF MORTGAGEE, BENEFICIARY OR LENDER.
(B)
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE SOLELY FOR THE
BENEFIT OF LENDER AND BORROWER AND NOTHING