CHARGES (EXCEPT TO THE EXTENT THAT SUMS SUFFICIENT TO PAY
SUCH AMOUNTS HAVE BEEN DEPOSITED IN ESCROW WITH LENDER PURSUANT TO THE TERMS OF
HEREOF), CHARGES FOR LABOR OR MATERIALS OR OTHER CHARGES THAT CAN CREATE LIENS
ON THE PROPERTIES; (VI) BORROWER'S FAILURE TO RETURN OR TO REIMBURSE LENDER FOR
ALL PERSONAL PROPERTY TAKEN FROM ANY PROPERTIES BY OR ON BEHALF OF BORROWER AND
NOT REPLACED WITH PERSONAL PROPERTY OF THE SAME UTILITY AND OF THE SAME OR
GREATER VALUE; (VII) ANY ACT OF INTENTIONAL WASTE OR ARSON BY BORROWER,
PRINCIPAL, OR ANY AFFILIATE THEREOF OR BY INDEMNITOR OR GUARANTOR; (VIII) ANY
FEES OR COMMISSIONS PAID BY BORROWER TO PRINCIPAL OR ANY AFFILIATE OF BORROWER
OR PRINCIPAL, INDEMNITOR, OR GUARANTOR IN VIOLATION OF THE TERMS OF THIS
AGREEMENT, THE NOTE, THE SECURITY INSTRUMENTS OR THE OTHER LOAN DOCUMENTS; (IX)
BORROWER'S FAILURE TO COMPLY WITH THE PROVISIONS OF SECTIONS 4.1.39 AND 5.1.19
OF THIS AGREEMENT; (X) A MATERIAL MISREPRESENTATION CONTAINED IN ANY REQUIRED
OUT-PARCEL OFFICER'S CERTIFICATE; OR (XI) ANY UNPAID MADISON PROPERTY OPTION
SHORTFALL AMOUNT DUE PURSUANT TO SECTION 2.5.5 HEREOF; PROVIDED, HOWEVER, THAT
IN NO EVENT SHALL GUARANTOR BE OBLIGATED FOR ANY MADISON PROPERTY OPTION
SHORTFALL AMOUNT IN EXCESS OF TEN PERCENT (10%) OF THE ORIGINAL PRINCIPAL AMOUNT
OF THE LOAN.
(C)
NOTWITHSTANDING THE FOREGOING, THE AGREEMENT OF LENDER NOT TO
PURSUE RECOURSE LIABILITY AS SET FORTH IN SUBSECTION (A) ABOVE SHALL BECOME NULL
AND VOID AND SHALL BE OF NO FURTHER FORCE AND EFFECT (I) IN THE EVENT OF A
DEFAULT UNDER SECTION 4.1.35 OF THIS AGREEMENT SUCH THAT SUCH FAILURE WAS
CONSIDERED BY A COURT AS A FACTOR IN THE COURT'S FINDING FOR A CONSOLIDATION OF
THE ASSETS OF BORROWER WITH THE ASSETS OF ANOTHER PERSON; PROVIDED, HOWEVER,
THAT IN THE ABSENCE OF AN ACTUAL CONSOLIDATION, RECOURSE MAY BE HAD AGAINST
BORROWER ONLY TO THE EXTENT OF LOSSES ACTUALLY INCURRED BY LENDER FOR BORROWER'S
FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 4.1.35; (II) IN THE EVENT OF
ANY BORROWER'S WILLFUL FAILURE TO PROVIDE A REPORT OR INFORMATION REQUIRED UNDER
SECTION 5.1.10, BUT A FAILURE TO PROVIDE SUCH REPORTS OR INFORMATION SHALL NOT
BE DEEMED WILLFUL IF SUCH FAILURE IS THE RESULT OF GOOD FAITH ERROR AND IS CURED
WITHIN TEN (10) BUSINESS DAYS AFTER NOTICE IS DELIVERED TO BORROWER, PROVIDED,
HOWEVER, THAT IF (X) BORROWER IS PREVENTED BY AN UNAFFILIATED THIRD PARTY
(INCLUDING BUT NOT LIMITED TO THE OPERATING TENANTS) FROM DELIVERING SUCH
INFORMATION, AND (Y) BORROWER USES REASONABLE EFFORTS TO OBTAIN SUCH
INFORMATION, THEN SUCH FAILURE SHALL NOT BE DEEMED WILLFUL SO LONG AS BORROWER
CONTINUOUSLY ENDEAVORS IN GOOD FAITH TO OBTAIN THE REQUIRED FINANCIAL REPORTS
AND INFORMATION AND DELIVERS SAME TO LENDER AS SOON AS IT BECOMES AVAILABLE TO
BORROWER; (III) IN THE EVENT OF A TRANSFER OTHER THAN AS EXPRESSLY PERMITTED
PURSUANT TO SECTION 5.2.10(C) HEREOF; (IV) IN THE EVENT OF A DEFAULT UNDER
SECTION 5.2.10(D) HEREOF; (V) IF ANY INDIVIDUAL PROPERTY OR ANY PART THEREOF
SHALL BECOME AN ASSET IN (A) A VOLUNTARY