A CERTAIN INTERCREDITOR AGREEMENT (THE
"INTERCREDITOR AGREEMENT") MEMORIALIZING THEIR RELATIVE RIGHTS AND OBLIGATIONS
WITH RESPECT TO THE LOAN, THE MEZZANINE LOAN, BORROWER, MEZZANINE BORROWER, THE
COLLATERAL AND THE PROPERTY.
BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT (I)
SUCH INTERCREDITOR AGREEMENT IS INTENDED SOLELY FOR THE BENEFIT OF LENDER AND
MEZZANINE LENDER AND (II) BORROWER AND MEZZANINE BORROWER ARE NOT INTENDED
THIRD-PARTY BENEFICIARIES OF ANY OF THE PROVISIONS THEREIN AND SHALL NOT BE
ENTITLED TO RELY ON ANY OF THE PROVISIONS CONTAINED THEREIN.
LENDER AND
MEZZANINE LENDER SHALL HAVE NO OBLIGATION TO DISCLOSE TO BORROWER THE CONTENTS
OF THE INTERCREDITOR AGREEMENT.
BORROWER'S OBLIGATIONS HEREUNDER ARE
INDEPENDENT OF SUCH INTERCREDITOR AGREEMENT AND REMAIN UNMODIFIED BY THE TERMS
AND PROVISIONS THEREOF.
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10.
MISCELLANEOUS
10.1
EXCULPATION.
(A)
SUBJECT TO THE QUALIFICATIONS BELOW, LENDER SHALL
NOT ENFORCE THE LIABILITY AND OBLIGATION OF BORROWER TO PERFORM AND OBSERVE THE
OBLIGATIONS CONTAINED IN THE LOAN DOCUMENTS BY ANY ACTION OR PROCEEDING WHEREIN
A MONEY JUDGMENT SHALL BE SOUGHT AGAINST BORROWER, EXCEPT THAT LENDER MAY BRING
A FORECLOSURE ACTION, AN ACTION FOR SPECIFIC PERFORMANCE OR ANY OTHER
APPROPRIATE ACTION OR PROCEEDING TO ENABLE LENDER TO ENFORCE AND REALIZE UPON
ITS INTEREST AND RIGHTS UNDER THE LOAN DOCUMENTS, OR IN THE PROPERTY, THE RENTS
OR ANY OTHER COLLATERAL GIVEN TO LENDER PURSUANT TO THE LOAN DOCUMENTS;
PROVIDED, HOWEVER, THAT, EXCEPT AS SPECIFICALLY PROVIDED HEREIN, ANY JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE ENFORCEABLE AGAINST BORROWER ONLY TO THE
EXTENT OF BORROWER'S INTEREST IN THE PROPERTY, IN THE RENTS AND IN ANY OTHER
COLLATERAL GIVEN TO LENDER, AND LENDER SHALL NOT SUE FOR, SEEK OR DEMAND ANY
DEFICIENCY JUDGMENT AGAINST BORROWER IN ANY SUCH ACTION OR PROCEEDING UNDER OR
BY REASON OF OR UNDER OR IN CONNECTION WITH ANY LOAN DOCUMENT.
THE PROVISIONS
OF THIS SECTION SHALL NOT, HOWEVER, (I) CONSTITUTE A WAIVER, RELEASE OR
IMPAIRMENT OF ANY OBLIGATION EVIDENCED OR SECURED BY ANY LOAN DOCUMENT;
(II) IMPAIR THE RIGHT OF LENDER TO NAME BORROWER AS A PARTY DEFENDANT IN ANY
ACTION OR SUIT FOR FORECLOSURE AND SALE UNDER THE MORTGAGE; (III) AFFECT THE
VALIDITY OR ENFORCEABILITY OF ANY OF THE LOAN DOCUMENTS OR ANY GUARANTY MADE IN
CONNECTION WITH THE LOAN OR ANY OF THE RIGHTS AND REMEDIES OF LENDER THEREUNDER;
(IV) IMPAIR THE RIGHT OF LENDER TO OBTAIN THE APPOINTMENT OF A RECEIVER;
(V) IMPAIR THE ENFORCEMENT OF THE ASSIGNMENT OF LEASES; (VI) CONSTITUTE A
PROHIBITION AGAINST LENDER TO COMMENCE ANY OTHER APPROPRIATE ACTION OR
PROCEEDING IN ORDER FOR LENDER TO FULLY REALIZE THE SECURITY GRANTED BY THE
MORTGAGE OR TO EXERCISE ITS REMEDIES AGAINST THE PROPERTY; OR (VII) CONSTITUTE A
WAIVER OF THE RIGHT OF LENDER TO ENFORCE THE LIABILITY AND OBLIGATION OF
BORROWER, BY MONEY JUDGMENT OR OTHERWISE, TO THE EXTENT OF ANY LOSS, DAMAGE,
COST, EXPENSE, LIABILITY, CLAIM OR OTHER OBLIGATION INCURRED BY LENDER
(INCLUDING ATTORNEYS' FEES AND COSTS REASONABLY INCURRED) (COLLECTIVELY,
"LENDER'S LOSSES") ARISING OUT OF OR IN CONNECTION WITH ANY OF THE FOLLOWING
(ALL SUCH LIABILITY AND OBLIGATION OF BORROWER