INDEMNIFIED PARTY AS A RESULT OF SUCH LOSSES, CLAIMS,
DAMAGES OR LIABILITIES (OR ACTION IN RESPECT THEREOF); PROVIDED, HOWEVER, THAT
NO PERSON GUILTY OF FRAUDULENT MISREPRESENTATION (WITHIN THE MEANING OF SECTION
11(F) OF THE SECURITIES ACT) SHALL BE ENTITLED TO CONTRIBUTION FROM ANY PERSON
WHO WAS NOT GUILTY OF SUCH FRAUDULENT MISREPRESENTATION.
IN DETERMINING THE
AMOUNT OF CONTRIBUTION TO WHICH THE RESPECTIVE PARTIES ARE ENTITLED, THE
FOLLOWING FACTORS SHALL BE CONSIDERED: (I) KEYBANK'S AND BORROWER'S RELATIVE
KNOWLEDGE AND ACCESS TO INFORMATION CONCERNING THE MATTER WITH RESPECT TO WHICH
THE CLAIM WAS ASSERTED; (II) THE OPPORTUNITY TO CORRECT AND PREVENT ANY
STATEMENT OR OMISSION; AND (III) ANY OTHER EQUITABLE CONSIDERATIONS APPROPRIATE
IN THE CIRCUMSTANCES.
LENDER AND BORROWER HEREBY AGREE THAT IT WOULD NOT BE
EQUITABLE IF THE AMOUNT OF SUCH CONTRIBUTION WERE DETERMINED BY PRO RATA OR PER
CAPITA ALLOCATION.
9.2.2
THE LIABILITIES AND OBLIGATIONS OF BOTH BORROWER AND LENDER UNDER THIS
SECTION 9.2 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE SATISFACTION
AND DISCHARGE OF THE DEBT. EXCULPATION. SUBJECT TO THE QUALIFICATIONS BELOW,
LENDER SHALL NOT ENFORCE THE LIABILITY AND OBLIGATION OF BORROWER TO PERFORM AND
OBSERVE THE OBLIGATIONS CONTAINED IN THE NOTE, THIS AGREEMENT, THE SECURITY
INSTRUMENT OR THE OTHER 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
UNDER THE NOTE, THIS AGREEMENT, THE SECURITY INSTRUMENT AND THE OTHER LOAN
DOCUMENTS, OR IN THE PROPERTY, THE RENTS FOLLOWING AN EVENT OF DEFAULT, 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 PROPERTY, IN THE RENTS FOLLOWING AN EVENT OF DEFAULT
AND IN ANY OTHER COLLATERAL GIVEN TO LENDER, AND LENDER, BY ACCEPTING THE NOTE,
THIS AGREEMENT, THE SECURITY INSTRUMENT AND THE OTHER LOAN DOCUMENTS, AGREES
THAT IT 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 OR IN
CONNECTION WITH THE NOTE, THIS AGREEMENT, THE SECURITY INSTRUMENT OR THE OTHER
LOAN DOCUMENTS.
THE PROVISIONS OF THIS SECTION SHALL NOT, HOWEVER,
(A) CONSTITUTE A WAIVER, RELEASE OR IMPAIRMENT OF ANY OBLIGATION EVIDENCED OR
SECURED BY ANY OF THE LOAN DOCUMENTS; (B) IMPAIR THE RIGHT OF LENDER TO NAME
BORROWER AS A PARTY DEFENDANT IN ANY ACTION OR SUIT FOR FORECLOSURE AND SALE
UNDER THE SECURITY INSTRUMENT; (C) AFFECT THE VALIDITY OR ENFORCEABILITY OF OR
ANY GUARANTY MADE IN
90
CONNECTION WITH THE LOAN OR ANY OF THE RIGHTS AND REMEDIES OF LENDER THEREUNDER;
(D) IMPAIR THE RIGHT OF LENDER TO OBTAIN THE APPOINTMENT OF A RECEIVER;
(E) IMPAIR THE ENFORCEMENT OF THE ASSIGNMENT OF LEASES FOLLOWING AN EVENT OF
DEFAULT; (F)