LENDER SHALL BE SUBROGATED, TO THE EXTENT OF SUCH PAYMENT, TO
ALL OF THE RIGHTS OF MORTGAGE LENDER UNDER THE MORTGAGE LOAN DOCUMENTS AGAINST
THE PROPERTY, IN ADDITION TO ALL OTHER RIGHTS IT MAY HAVE UNDER THE LOAN
DOCUMENTS.
Section 9.12
Mezzanine A Loan Defaults.
(A)
WITHOUT LIMITING THE GENERALITY OF THE
OTHER PROVISIONS OF THIS AGREEMENT, AND WITHOUT WAIVING OR RELEASING BORROWER
FROM ANY OF ITS OBLIGATIONS HEREUNDER, IF THERE SHALL OCCUR ANY MEZZANINE A
EVENT OF DEFAULT, BORROWER HEREBY EXPRESSLY AGREES THAT LENDER SHALL HAVE THE
IMMEDIATE RIGHT, WITHOUT NOTICE TO OR DEMAND ON BORROWER OR MEZZANINE A
BORROWER, BUT SHALL BE UNDER NO OBLIGATION: (I) TO PAY ALL OR ANY PART OF THE
MEZZANINE A LOAN, AND ANY OTHER SUMS, THAT ARE THEN DUE AND PAYABLE AND TO
PERFORM ANY ACT OR TAKE ANY ACTION ON BEHALF OF MEZZANINE A BORROWER, AS MAY BE
APPROPRIATE, TO CAUSE ALL OF THE TERMS, COVENANTS AND CONDITIONS OF THE
MEZZANINE A LOAN DOCUMENTS ON THE PART OF MEZZANINE A BORROWER TO BE PERFORMED
OR OBSERVED THEREUNDER TO BE TIMELY PERFORMED OR OBSERVED; AND (II) TO PAY ANY
OTHER AMOUNTS AND TAKE ANY OTHER ACTION AS LENDER SHALL REASONABLY DETERMINE TO
BE NECESSARY TO PROTECT OR PRESERVE THE RIGHTS AND INTERESTS OF LENDER IN THE
LOAN AND/OR THE COLLATERAL. LENDER SHALL HAVE NO OBLIGATION TO COMPLETE ANY CURE
OR ATTEMPTED CURE UNDERTAKEN OR COMMENCED BY LENDER. ALL SUMS SO PAID AND THE
COSTS AND EXPENSES INCURRED BY LENDER IN EXERCISING RIGHTS UNDER THIS
SECTION (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' AND OTHER
PROFESSIONAL FEES), WITH INTEREST AT THE DEFAULT RATE, FOR THE PERIOD FROM THE
DATE OF DEMAND BY LENDER TO BORROWER FOR SUCH PAYMENTS TO THE DATE OF PAYMENT TO
LENDER, SHALL CONSTITUTE A PORTION OF THE DEBT, SHALL BE SECURED BY THE PLEDGE
AGREEMENT AND SHALL BE DUE AND PAYABLE TO LENDER WITHIN TEN (10) DAYS FOLLOWING
DEMAND THEREFOR.
162
(B)
SUBJECT TO THE RIGHTS OF TENANTS, BORROWER
HEREBY GRANTS, AND SHALL CAUSE MEZZANINE A BORROWER TO GRANT, LENDER AND ANY
PERSON DESIGNATED BY LENDER THE RIGHT TO ENTER UPON THE PROPERTY AT ANY TIME FOR
THE PURPOSE OF CARRYING OUT THE RIGHTS GRANTED TO LENDER UNDER THIS
SECTION 9.12.
(C)
BORROWER SHALL INDEMNIFY AND HOLD HARMLESS
LENDER FROM AND AGAINST ALL OUT-OF-POCKET LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ASSESSMENTS, ACTIONS, OR CAUSES OF ACTION, JUDGMENTS, SUITS,
CLAIMS, DEMANDS, COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEYS' AND OTHER PROFESSIONAL FEES, WHETHER OR NOT SUIT IS BROUGHT, AND
SETTLEMENT COSTS), AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH
MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST LENDER AS A RESULT OF THE
FOREGOING ACTIONS DESCRIBED IN SECTION 9.12(A) OTHER THAN LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ASSESSMENTS, ACTIONS, OR CAUSES OF
ACTION, JUDGMENTS, SUITS, CLAIMS, DEMANDS, COSTS, EXPENSES AND DISBURSEMENTS
ARISING OUT OF THE FRAUD, ILLEGAL ACTS, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF LENDER. LENDER SHALL HAVE NO OBLIGATION TO BORROWER, MEZZANINE A BORROWER OR
ANY OTHER PARTY TO MAKE