INCURRED BY, OR ASSERTED AGAINST LENDER
IN ANY MANNER RELATING TO OR ARISING OUT OF (I) ANY BREACH BY ANY BORROWER OF
ITS OBLIGATIONS UNDER, OR ANY MATERIAL MISREPRESENTATION BY ANY 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 BORROWERS SHALL NOT HAVE ANY OBLIGATION
TO LENDER HEREUNDER TO THE EXTENT THAT SUCH INDEMNIFIED LIABILITIES ARISE FROM
THE GROSS NEGLIGENCE, ILLEGAL ACTS, FRAUD OR WILLFUL MISCONDUCT OF LENDER.
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, BORROWERS SHALL PAY THE MAXIMUM PORTION THAT THEY ARE PERMITTED
TO PAY AND SATISFY UNDER APPLICABLE LAW TO THE PAYMENT AND SATISFACTION OF ALL
INDEMNIFIED LIABILITIES INCURRED BY LENDER.
(C)
BORROWERS, JOINTLY AND SEVERALLY, COVENANT
AND AGREE TO PAY FOR OR, IF BORROWERS FAIL TO PAY, TO REIMBURSE LENDER FOR, ANY
FEES AND EXPENSES INCURRED BY ANY RATING
233
AGENCY IN CONNECTION WITH ANY CONSENT, APPROVAL, WAIVER OR CONFIRMATION OBTAINED
FROM SUCH RATING AGENCY AND REQUIRED PURSUANT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN CONNECTION WITH ANY REQUEST OR
APPROVAL SOUGHT BY BORROWERS, AND LENDER SHALL BE ENTITLED TO REQUIRE PAYMENT OF
SUCH FEES AND EXPENSES AS A CONDITION PRECEDENT TO THE OBTAINING OF ANY SUCH
CONSENT, APPROVAL, WAIVER OR CONFIRMATION; PROVIDED, HOWEVER, THAT LENDER
EXPRESSLY ACKNOWLEDGES AND AGREES THAT BORROWERS SHALL NOT BE REQUIRED TO PAY
ANY RATING AGENCY SURVEILLANCE CHARGES.
Section 10.14
Schedules and Exhibits Incorporated.
The
Schedules and Exhibits 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 10.15
Offsets, Counterclaims and Defenses.
Any
assignee of Lender's interest in and to this Agreement, the Note 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 Borrowers may otherwise
have against any assignor of such documents, and no such unrelated counterclaim
or defense shall be interposed or asserted by any 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 each Borrower to the
extent permitted by applicable law.
Section 10.16
No Joint Venture or Partnership; No Third
Party Beneficiaries.
(A)
BORROWERS 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 ANY BORROWER AND LENDER NOR TO GRANT LENDER ANY INTEREST IN ANY PROPERTY
OR THE IP OTHER THAN THAT OF MORTGAGEE, BENEFICIARY OR LENDER.
(B)
THIS AGREEMENT AND THE