THE NOTE, AND TO THE
PAYMENT OF ACTUAL AND REASONABLE OPERATING EXPENSES OF THE PROPERTY, AS THEY
BECOME DUE OR PAYABLE (EXCEPT TO THE EXTENT THAT SUCH APPLICATION OF SUCH FUNDS
IS PREVENTED BY BANKRUPTCY, RECEIVERSHIP, OR SIMILAR JUDICIAL PROCEEDING IN
WHICH BORROWER OR OWNER IS LEGALLY PREVENTED FROM DIRECTING THE DISBURSEMENT OF
SUCH SUMS);
(E)
MISAPPROPRIATION (INCLUDING FAILURE TO TURN
OVER TO LENDER ON DEMAND FOLLOWING AN EVENT OF DEFAULT) OF TENANT SECURITY
DEPOSITS AND RENTS COLLECTED IN ADVANCE, OR OF FUNDS HELD BY BORROWER OR OWNER
FOR THE BENEFIT OF ANOTHER PARTY;
(F)
THE FAILURE BY BORROWER OR OWNER TO PAY
TAXES;
(G)
THE BREACH OF ANY REPRESENTATION, WARRANTY,
COVENANT OR INDEMNIFICATION IN ANY LOAN DOCUMENT CONCERNING ENVIRONMENTAL LAWS
OR HAZARDOUS SUBSTANCES, INCLUDING SECTIONS 4.21 AND 5.8, AND CLAUSES
(VIII) THROUGH (XI) OF SECTION 5.30;
(H)
THE FAILURE BY BORROWER TO CAUSE OWNER TO
DEPOSIT WITH SENIOR LENDER ALL RENTS, AS REQUIRED UNDER ARTICLE 3 OF THE SENIOR
LOAN AGREEMENT;
(I)
THE FAILURE BY BORROWER TO CAUSE OWNER
TO USE ANY FUNDS RELEASED BY SENIOR LENDER FROM ANY SUBACCOUNT PROVIDED FOR IN
THE SENIOR LOAN AGREEMENT FOR APPROVED CAPEX/FF&E EXPENSES, APPROVED OPERATING
EXPENSES, AS APPLICABLE, OR FOR ANY OTHER INTENDED USE THEREFOR, AS MORE
PARTICULARLY PROVIDED FOR IN THE SENIOR LOAN AGREEMENT OR
(J)
ANY COST OR EXPENSE INCURRED BY LENDER
IN CONNECTION WITH THE ENFORCEMENT OF ITS RIGHTS AND REMEDIES HEREUNDER OR ANY
OTHER LOAN DOCUMENT.
Notwithstanding anything to the contrary in this Agreement 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
U.S. Bankruptcy Code to file a claim for the full amount of the Debt or to
require that all collateral shall continue to secure all of the Debt in
accordance with the Loan Documents, and (B) Lender's agreement not to pursue
personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and
shall be of no further force and effect, and the Debt shall be fully recourse to
Borrower in the event that one or more of the following occurs (each, a
"Springing Recourse Event"):
(I)
AN EVENT OF DEFAULT DESCRIBED IN SECTION
8.1(D) SHALL HAVE OCCURRED OR
(II)
A BREACH OF THE COVENANTS SET FORTH IN
SECTION 5.13, OR
(III)
THE OCCURRENCE OF ANY CONDITION OR EVENT
DESCRIBED IN EITHER SECTION 8.1(F)(I) OR SECTION 8.1(G) AND, WITH RESPECT TO
SUCH CONDITION OR EVENT DESCRIBED IN SECTION 8.1(G), EITHER (A) BORROWER, SOLE
MEMBER, OWNER, GUARANTOR OR ANY PERSON OWNING A
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CONTROLLING INTEREST (DIRECTLY OR INDIRECTLY) IN BORROWER, SOLE MEMBER, OWNER OR
GUARANTOR CONSENTS TO, AIDS, SOLICITS, SUPPORTS, OR OTHERWISE COOPERATES OR
COLLUDES TO CAUSE SUCH CONDITION OR (B) THE ENTITY AGAINST WHICH THE CONDITION
OR EVENT DESCRIBED IN SECTION 8.1(G) HAS BEEN FILED OR ANY PERSON WHICH CONTROLS
(IN THE SENSE OF CLAUSE (II) OF THE DEFINED TERM "CONTROL") SUCH ENTITY FAILS TO
CONTEST SUCH CONDITION