instruments which
govern the Loans by virtue of the ownership by it or any parent, subsidiary or
Affiliate of any Lenders of any equity interest any of them may acquire in
Borrower, and Borrower hereby irrevocably waives the right to raise any defense
or take any action on the basis of the foregoing with respect to any Lender's or
the Agent's exercise of any such rights or remedies. Borrower acknowledges that
the Lenders engage in the business of real estate financings and other real
estate transactions and investments which may be viewed as adverse to or
competitive with the business of Borrower or its Affiliates.
SECTION 23.17
DEFAULTING LENDER.
(A)
IF FOR ANY REASON, ANY LENDER FAILS OR REFUSES TO ABIDE BY ITS
OBLIGATIONS UNDER THE LOAN AGREEMENT THE OTHER LOAN DOCUMENTS AND SUCH FAILURE
CONTINUES FIVE (5) DAYS AFTER WRITTEN NOTICE FROM THE AGENT (OR IF THE AGENT, AS
A LENDER, IS THE ONE REFUSING OR FAILING TO ABIDE BY ITS OBLIGATIONS, FROM ANY
OTHER LENDER) OF SUCH FAILURE (PROVIDED THAT NO SUCH WRITTEN NOTICE AND
OPPORTUNITY TO CURE SHALL BE APPLICABLE TO THE EXTENT THAT IT MAY, IN ANY WAY,
PREJUDICE OR ADVERSELY AFFECT THE RIGHTS OR REMEDIES OF AGENT UNDER THE LOAN
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS) (EACH A "DEFAULTING LENDER"),
THEN, IN ADDITION TO THE RIGHTS AND REMEDIES THAT MAY BE AVAILABLE TO BORROWER,
THE AGENT AND THE OTHER LENDERS AT LAW AND IN EQUITY, SUCH DEFAULTING LENDER'S
RIGHT TO PARTICIPATE IN THE ADMINISTRATION OF THE LOANS AND THE LOAN DOCUMENTS,
INCLUDING WITHOUT LIMITATION, ANY RIGHTS TO CONSENT TO OR DIRECT ANY ACTION OR
INACTION OF THE AGENT SHALL BE SUSPENDED DURING THE PENDENCY OF SUCH FAILURE OR
REFUSAL.
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(B)
IF FOR ANY REASON ANY DEFAULTING LENDER FAILS TO MAKE TIMELY
PAYMENT OF ANY AMOUNT REQUIRED TO BE PAID BY IT HEREUNDER OR UNDER THE LOAN
DOCUMENTS, IN ADDITION TO OTHER RIGHTS AND REMEDIES WHICH THE AGENT OR BORROWER
MAY HAVE UNDER SECTION 23.17(A) HEREOF OR OTHERWISE, THE AGENT, ON BEHALF OF ALL
LENDERS, SHALL BE ENTITLED (I) TO COLLECT INTEREST FROM THE DEFAULTING LENDER
FOR THE PERIOD FROM (AND INCLUDING) THE DATE ON WHICH THE PAYMENT WAS DUE UNTIL
(BUT EXCLUDING) THE DATE ON WHICH THE PAYMENT IS MADE AT THE PRIME RATE,
(II) PURSUANT TO SECTION 23.17(D) HEREOF, TO WITHHOLD OR SET OFF, AND TO APPLY
TO THE PAYMENT OF THE DEFAULTED AMOUNT AND ANY RELATED INTEREST, ANY AMOUNTS TO
BE PAID TO THE DEFAULTING LENDER UNDER THIS AGREEMENT, AND (III) TO BRING AN
ACTION OR SUIT AGAINST THE DEFAULTING LENDER IN A COURT OF COMPETENT
JURISDICTION TO RECOVER THE DEFAULTED AMOUNT AND ANY RELATED INTEREST.
(C)
IF THE AGENT IS A DEFAULTING LENDER, THE LENDERS (OTHER THAN
THE AGENT AS A LENDER HEREUNDER) HOLDING ONE HUNDRED PERCENT (100%) OF THE
OUTSTANDING PRINCIPAL BALANCE OF THE NOTES SHALL HAVE THE IMMEDIATE RIGHT TO
TERMINATE THE AGENT AS AGENT HEREUNDER AND APPOINT A SUCCESSOR AGENT.
UNTIL
SUCH TIME AS SUCH