AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL FOR THE LENDER
INDEMNITEES IN CONNECTION WITH ANY INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL
PROCEEDING COMMENCED OR THREATENED, WHETHER OR NOT THE LENDER INDEMNITEES SHALL
BE DESIGNATED A PARTY THERETO), THAT MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED
AGAINST THE LENDER INDEMNITEES IN ANY MANNER RELATING TO OR ARISING OUT OF (I)
ANY BREACH BY BORROWER OF ITS OBLIGATIONS UNDER, OR ANY MATERIAL
MISREPRESENTATION BY BORROWER CONTAINED IN, THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS, OR (II) THE USE OR INTENDED USE OF THE PROCEEDS OF THE LOAN
(COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"); PROVIDED, HOWEVER, THAT BORROWER
SHALL NOT HAVE ANY OBLIGATION TO THE LENDER INDEMNITEES HEREUNDER TO THE EXTENT
THAT SUCH INDEMNIFIED LIABILITIES ARISE FROM THE GROSS NEGLIGENCE, ILLEGAL ACTS,
FRAUD OR WILLFUL MISCONDUCT OF THE LENDER INDEMNITEES. 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 INDEMNIFIED
LIABILITIES INCURRED BY THE LENDER INDEMNITEES.
SECTION 11.14
SCHEDULES INCORPORATED. THE SCHEDULES 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 11.15
OFFSETS, COUNTERCLAIMS AND DEFENSES. ANY
ASSIGNEE OF LENDER'S INTEREST IN AND TO THIS AGREEMENT 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.
79
SECTION 11.16
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 TENANCY RELATIONSHIP
BETWEEN BORROWER AND LENDER NOR TO GRANT LENDER ANY INTEREST IN THE PROPERTY
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 CONTAINED IN THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE DEEMED TO CONFER UPON ANYONE
OTHER THAN LENDER ANY RIGHT TO INSIST UPON OR TO ENFORCE THE PERFORMANCE OR
OBSERVANCE OF ANY OF THE OBLIGATIONS CONTAINED HEREIN OR THEREIN. ALL CONDITIONS
TO THE OBLIGATIONS OF LENDER TO MAKE THE LOAN HEREUNDER ARE IMPOSED SOLELY AND
EXCLUSIVELY FOR THE BENEFIT OF LENDER AND BORROWER AND NO OTHER