Common use of Exculpation Clause in Contracts

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document to the contrary, except as otherwise set forth in this Section 8.01 to the contrary, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partners, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such Default Collateral. The provisions of this Section shall not, however, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateral.

Exculpation. Notwithstanding anything Anything contained herein, in this Agreement the Note or in any other Loan Document to the contrary, contrary notwithstanding (except as otherwise set forth in the balance of this Section 8.01 to or in the contraryMezzanine Loan Environmental Indemnity), Lender no recourse shall not enforce be had for the liability and obligation payment of the principal or interest on the Note or for any other portion of the Debt hereunder or under the other Loan Documents against (i) any Affiliate, parent company, trustee or advisor of any Borrower or any Person holding owner of a direct or indirect Beneficial or equitable interest in a Borrower or Sponsor, any member in any Borrower, or any partner, shareholder or member therein (other than against Sponsor pursuant to the Mezzanine Loan Sponsor Indemnity Agreement); (ii) any legal representative, heir, estate, successor or assign of any thereof; (iii) any corporation (or any officer, director, employee or shareholder thereof), individual or entity to which any ownership interest in any Borrower shall have been transferred; (iv) any purchaser of any asset of any Borrower; or (v) any other Person (except Borrowers), for any deficiency or other sum owing with respect to the Note or the Debt. It is understood that the Note and the Debt (except as set forth in the balance of this Section 12.24 and in the Mezzanine Loan Environmental Indemnity) may not be enforced against any Person described in clauses (i) through (v) above (other than against Sponsor pursuant to the Mezzanine Loan Sponsor Indemnity Agreement as set forth in clause (i) above) and Lender agrees not to ▇▇▇ or bring any legal action or proceeding against any such Person in such respect. Notwithstanding the foregoing, the foregoing shall not (a) if prevent recourse to the Borrowers or the assets of any Borrower, or enforcement of the Pledge or other instrument or document by which Borrowers are bound pursuant to the Loan Documents; (b) estop Lender from instituting or prosecuting a legal action or proceeding or otherwise making a claim against any Borrower or Property Owner as a result of any of the following or against the Person or Persons committing any of the following: (i) fraud or intentional misrepresentation by any Borrower in connection with the Loan or by any Property Owner in connection with the Senior Loan, (ii) the misappropriation by any Borrower, any Property Owner, any Operating Lessee or any Affiliate of Borrower or Property Owner or Operating Lessee of any Proceeds, any Rents and any security deposits, (iii) the breach of any representation, warranty, covenant or indemnification provision in the Mezzanine Loan Environmental Indemnity, (iv) any breach of Section 6.1(i), (v) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Properties, the Ownership Interests, the Mezzanine Loan Deposit Account, the Mezzanine Loan Holding Account Current Debt Service Account or the Interest Rate Cap Agreement being encumbered by a Lien (other than pursuant to the Loan Documents in favor of Lender) in violation of the Loan Documents, (vi) physical damage to any Property from intentional waste committed by any Borrower, any Property Owner or Operating Lessee or any Affiliate of any Borrower or Property Owner or Operating Lessee, (vii) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of any Borrower to comply with any of the provisions of Article XIV hereof, (viii) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) any Borrower or any Property Owner should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Ownership Interests, the Mezzanine Loan Deposit Account, the Mezzanine Loan Holding Account, the Current Debt Service Reserve Account or assignment of its direct any Borrower’s rights to the Interest Rate Cap Agreement (including the right to receive any proceeds derived therefore) or indirect owners any part thereof which is found by a partnershipcourt to have been raised by any Borrower or any Property Owner in bad faith or to be wholly without basis in fact or law, its or their direct (y) an involuntary case is commenced against any Borrower or indirect constituent partners any Property Owner under the Bankruptcy Code with the collusion of any Borrower, any Property Owner, Sponsor or any of their respective partners, Affiliates or (bz) if an order for relief is entered with respect to any Borrower or any Property Owner or Operating Lessee under the Bankruptcy Code through the actions of its direct any Borrower, any Property Owner or indirect owners is a trustany Operating Lessee, its or their beneficiaries Sponsor or any of their respective Partners Affiliates or (as hereinafter defined)ix) any loss, damage, cost or expense incurred by or on behalf of Lender (including, by (i) any successor and or assign of Lender or (ii) any nominee, designee or purchaser of any portion of the Loan or Ownership Interests in connection with a foreclosure or deed in lieu of foreclosure transaction) by reason of the failure of any Borrower or Property Owner to complete and pay for the work set forth on attached Exhibit D at the Properties; or (xi) attorney’s fees, costs and expenses incurred by Lender, its agents or any servicer of the Loan in connection with any successful suit by Lender to enforce the terms of the Loan Documents; or (c) if Borrower estop Lender from enforcing its rights under the indemnity agreement being executed concurrently herewith by the Sponsor in favor of the Lender, for losses caused by any of the foregoing items set forth in section (b) above. Borrowers hereby agree that notwithstanding any provision to the contrary herein or in any other Loan Document, to the extent otherwise permitted by law, its obligations pursuant to clause (b)(x) of this Section shall survive the full repayment of the Loan and/or the passage of title to all or any portion of its direct or indirect owners is a corporationthe Ownership Interests to Lender. Notwithstanding the foregoing, the total liability of any of its or their direct or indirect shareholdersBorrower under this Agreement, directorsthe Note, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement Pledge or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partners, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon not: (i) at any time during the period from the Closing Date to a date one year and a day after the Closing Date exceed the sum of (A) the Allocated Loan Amount for the Ownership Interest or Ownership Interests as being owned by such Borrower plus (B) such Borrower’s interest in Net Worth on the Collateraldate hereof, less (C) $1,000, and (ii) subject to at any time after the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter period referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses clause (i) — above exceed the sum of (iiiA) the Allocated Loan Amount for the Ownership Interests as being owned by such Borrower plus (B) the greater of such Borrower’s Net Worth on the date hereof and such Borrower’s Net Worth on the date such determination is hereinafter referred to as the “Default Collateral”); provided, however, being made (it being understood that for purposes of determining such Borrower’s Net Worth on any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only date subsequent to the extent of any date that is one year and a day after the Closing Date, such Default Collateral. The provisions of this Section Borrower’s liabilities shall not, however, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability only include liabilities that are permitted under the Guaranty delivered by Guarantor with respect to same; (f) impair the right terms of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(bless (C) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateral$1,000.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations Obligations contained in the Note, this Agreement Agreement, the Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the PartnersBorrower, except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Property or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The Except for the limitation on Lender’s remedies as provided herein, the provisions of this Section 11.22 shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Security Instrument; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, Documents or impair any guaranty made in connection with the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the GuarantyLoan; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate the Assignment of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to sameLeases; (f) impair the right of constitute a prohibition against Lender to bring suit seek a deficiency judgment against Borrower in order to fully realize the security granted by the Mortgage or to commence any other appropriate action or proceeding in order for a monetary judgment Lender to obtain exercise its remedies against the Recourse Distributions received by Borrower Property; or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right constitute a waiver of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions liability and obligation of Sections 2.02(gBorrower, 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) and 4.01, inclusive arising out of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis connection with the following (all such liability and obligation of Borrower for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note following being referred to herein as provided in the Loan Documents; “Borrower’s Recourse Liabilities”): (ki) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud, willful misconduct or material misrepresentation by Borrower, Guarantor or any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability Affiliate of Borrower or Guarantor to in connection with the extent Loan, including by reason of Guarantor’s liability any claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”); (ii) the breach of any guaranty delivered by Guarantor representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and/or asbestos and any indemnification of Lender with respect to same; thereto in either document; (liii) impair the right of Lender to s▇▇ for, seek wrongful removal or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent destruction of any portion of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral Property or damage to the collateral resulting from the Property caused by willful misconduct or gross negligence of Borrower, Guarantor or willful misconduct an Affiliate of Borrower oror Guarantor; (iv) any physical waste of the Property caused by Borrower, Guarantor or any Affiliate of Borrower or Guarantor; (v) the forfeiture by Borrower of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower, Guarantor or any Affiliate of Borrower or Guarantor or Guarantor; (vi) the misapplication or conversion by Borrower, Guarantor or any Affiliate of Borrower or Guarantor of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to the extent Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, or (C) any Gross Revenues (including Rents, security deposits, advance deposits or any other deposits and Lease Termination Payments); (vii) failure of Borrower to pay charges for labor or materials or other charges contracted for by Borrower that there is sufficient cash flowcreates Liens (other than the Permitted Encumbrances) on any portion of the Property; (viii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender in accordance with the provisions of the Loan Documents; (ix) the failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit Taxes for a monetary judgment against which Borrower in the event of the exercise of any right or remedy is responsible under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, the Ground Lease and/or any other Loan Document; (x) failure to comply with the requirements of Borrower regarding the Policies in accordance with Section 5.1.1 hereof; (xi) Borrower’s indemnification of Lender set forth in Section 9.2 hereof; (xii) if Borrower breaches its representations, warranties and/or covenants contained in Section 3.1.41 or Section 4.1.16 hereof with respect to the priority thereofGround Lease; and/or (xiii) the existence and/or enforcement of the “Indemnified Title Items” referenced in the Disclosure Schedule (notwithstanding the fact that the Title Insurance Policy affirmatively insures over such Indemnified Title Items). (xiv) failure of Borrower to cause the demolition and/or removal of all or any portion of the Improvements, against Personal Property and/or the Collateral; Ground Tenant Improvements designated by Lender if, following a Casualty or Condemnation at the Property, the Improvements and/or the Ground Tenant Improvements are not restored in accordance with the terms and conditions of Sections 5.2, 5.3 and/or 5.4 and the Ground Lease as a result of the failure of Ground Tenant’s mortgage lender to make proceeds/awards available to Ground Tenant for such purpose. Notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (oA) Lender shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt Obligations or to require that all collateral shall continue to secure all of the Debt; Obligations owing to Lender in accordance with the Loan Documents, and (pB) impair the right of Lender Obligations shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event that any of the following occur (each, a Transfer in violation of “Springing Recourse Event”): (i) Borrower fails to comply with the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment Section 3.1.24 hereof if such failure actually results in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate substantive consolidation of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate ’s assets into the bankruptcy estate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith another Person (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (bi) if and to the extent that Lender takes affirmative, legal action in any legal proceedings involving Borrower or the bankruptcy estate of another Person, the purpose of which is to cause the substantive consolidation of Borrower’s assets and such affirmative, legal action by Lender causes the substantive consolidation of Borrower’s assets); (ii) except as otherwise expressly permitted in this Agreement and/or any other Loan Document, Borrower fails to obtain Lender’s prior consent in accordance with the terms of this Agreement to any subordinate financing secured by the Property or other voluntary Lien encumbering the Property (other than the Permitted Encumbrances); (iii) Borrower fails to obtain Lender’s prior consent in accordance with the terms of this Agreement to any Transfer of the Property or any interest therein or any Transfer of any direct or indirect interest in Borrower, in either case as required by the Security Instrument or this Agreement other than a Permitted Transfer or as otherwise expressly permitted under any Loan Document (it being further understood and agreed that none of the following shall constitute a violation of any restrictions on Transfer under this Agreement or any Loan Document giving rise to liability under this clause (iii): (A) a Defeasance or compliance by Borrower with any of the provisions contained in Section 2.5 of this Agreement, (B) an involuntary Condemnation of the Property or any part thereof, or (cC) a foreclosure or deed in lieu of foreclosure of the Property or any portion thereof, as applicable); (iv) Borrower or Sole Member files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iv) fails the filing of an involuntary petition against Borrower and/or Sole Member under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Sole Member or Guarantor or any Affiliate of Borrower, Sole Member and/or Guarantor colludes with or otherwise assists such Person, and/or Borrower, Sole Member or Guarantor or any Affiliate of Borrower, Sole Member or Guarantor solicits or causes to cause Owner be solicited petitioning creditors for any involuntary petition against Borrower and/or Sole Member by any Person; (vi) Borrower and/or Sole Member files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (vii) Borrower, Sole Member, Guarantor or any Affiliate of Borrower, Sole Member or Guarantor consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee or examiner for Borrower or any portion of the Property; or (viii) Borrower or Sole Member makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to deliver notice pay its debts as they become due; or (ix) if Guarantor, Borrower, Sole Member or any Affiliate of default any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Guaranty, the Note, the Mortgage or any Ground Lease to other Loan Document, seeks a defense, judicial intervention or injunctive or other equitable relief of any kind, or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any other Person designated right in writing by Lender or connection with any security for the Loan; provided thatthere shall be no liability pursuant to this clause (iiix)in the event that (A) fails with respect to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lendera monetary obligation/liability, Borrower asserts, in which event Lender shall have recourse against all good faith, a defense of actual payment or contests, in good faith, the assets calculation of Borrower includingamounts owed, without limitationand (B) with respect to a non-monetary obligation/liability, any rightsuch defense, title and interest of Borrower judicial intervention or injunctive or other equitable relief is raised or asserted by Guarantor in and to the Collateralgood faith.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document (a) Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the Partnersforegoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Collateral, Property (ii) subject to the rights of Mortgage Lenderor any portion thereof), the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (a1) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Security Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Note, this Agreement, Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the other Loan Documentsrights and remedies of Lender thereunder (including, or without limitation, L▇▇▇▇▇’s right to enforce said rights and remedies against B▇▇▇▇▇▇▇ and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the right rights of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (dA) impair the right of Lender to obtain the appointment of a receiverreceiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (e5) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or the assignment of leases and rents contained in the Security Instrument and in any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i6) impair the right of Lender to enforce the provisions of Sections 2.02(gSection 4.12(e) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or ; (7) constitute a prohibition against Lender to bring suit for seek a monetary deficiency judgment against Borrower with respect in order to fully realize the security granted by the Security Instrument or to commence any obligation set forth other appropriate action or proceeding in said Sectionsorder for Lender to exercise its remedies against the Property (or any portion thereof); or (j) prevent or in any way hinder Lender from exercising, or 8) constitute a defense, or counterclaim, or other basis for relief in respect waiver of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss actually incurred by L▇▇▇▇▇ (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following: (i) fraud or intentional material misrepresentation by B▇▇▇▇▇▇▇, any SPE Component Entity, Sponsor, any Affiliated Manager, Guarantor or any director, officer, beneficiary, shareholder, partner, member, employee or agent acting on behalf of any of the foregoing (each, a “Recourse Party”) in connection with the Loan; (ii) willful misconduct of any Recourse Party in connection with the Loan; (iii) the breach of any indemnification provision in the Loan Documents concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto; (iv) material physical waste to any Property caused by the intentional acts of any Recourse Party, but only to the extent there is sufficient cash flow from the Properties to prevent such physical waste and such cash flow is made available by Lender for the purpose of preventing such physical waste; (v) the removal of any property in contravention of the Loan Documents during the continuance of an Event of Default other than in the ordinary course of business; (vi) the misappropriation or conversion of any of the following by a monetary judgment against Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds received by Borrower by reason of any Casualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with a Condemnation of all or a portion of the Property, or (C) any revenues generated by the Properties; (vii) any Security Deposits, advance deposits or any other deposits collected with respect to any misapplication Property which are not delivered to Lender upon a foreclosure of such Property or conversion of Loss Proceedsaction in lieu thereof, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor except to the extent any such Security Deposits were applied in accordance with the terms and conditions of Guarantor’s liability under any guaranty delivered of the applicable Lease; (viii) any litigation or other legal proceeding related to the Loan filed by Guarantor a Recourse Party with respect to same; (l) impair the right effect of Lender to sdelaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of L▇▇▇▇▇ for, seek or demand a deficiency judgment against Borrower solely for to exercise any rights and remedies available to Lender during the purpose continuance of foreclosing the Premises or any part thereof, or realizing upon the Default Collateralan Event of Default; provided, however, that there shall be no liability hereunder on account of, and the foregoing shall not restrict, B▇▇▇▇▇▇▇’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default shall have occurred or whether an action taken by Lender pursuant to the Loan Documents is permitted thereby, nor shall Borrower be restricted from, or have liability hereunder for, bringing a good faith counterclaim which if not raised in the foreclosure proceeding would be barred, and which does not seek to enjoin the enforcement action by L▇▇▇▇▇; (ix) Borrower fails to obtain L▇▇▇▇▇’s prior written consent to any additional indebtedness or voluntary lien encumbering any Property and not permitted by the Loan Documents; (x) a material breach by Borrower of Section 5.5; (xi) any voluntary termination, or any voluntary, material modification of any Ground Lease by Borrower without L▇▇▇▇▇’s prior written consent other than as expressly permitted under this Agreement; provided, that the liability with respect to this Section 13.1(a)(xi) shall not exceed the Allocated Loan Amount of the applicable Ground Leased Property; (xii) (A) any voluntary termination of any PILOT Lease and/or PILOT Document or transfer or surrender of any PILOT Lease and/or PILOT Document (including any PILOT Bond) by Borrower without L▇▇▇▇▇’s prior written consent other than in connection with Borrower acquiring the fee estate from the applicable PILOT Lessor or as otherwise expressly permitted under this Agreement, (B) any termination of any PILOT Lease and/or PILOT Document as a result of a foreclosure of the applicable Security Instrument or deed in lieu thereof or (C) Borrower’s or the applicable Tenant’s failure to comply with or Borrower’s or the applicable Tenant’s breach of any PILOT Lease and/or PILOT Document that results in (x) a reduction of any tax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and the benefits thereunder in favor of Borrower or Tenant or (z) a default by such Borrower under the applicable Lease for such PILOT Property (and, in any such deficiency judgment referred case, Losses shall include lost rental income); provided, that, in each case, the liability with respect to this Section 13.1(a)(xii) shall not exceed the Allocated Loan Amount of the applicable PILOT Property; and/or (xiii) other than as set forth in Section 13.1(b)(v), a breach by Borrower of any covenant of Article 5 of this Agreement documents (excluding any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due). (b) Notwithstanding anything to the contrary in this clause (l) shall be enforceable against Borrower and Guarantor only to Agreement, the extent of Note or any of the Default Collateral; Loan Documents, (mA) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; Debt owing to Lender in accordance with the Loan Documents, and (pB) impair the right of Lender Debt shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; that: (ri) impair the right of Lender to bring suit for a monetary judgment Borrower or any SPE Component Entity or any Affiliate thereof files, or joins in the event that filing of, a petition against Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy CodeCode or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited (or otherwise colludes with) petitioning creditors for any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed involuntary petition against Borrower, Owner or Guarantor and consented to or acquiesced in by (ii) Borrower or Owner any SPE Component Entity or any Affiliate thereof files an answer consenting to an involuntary petition filed against Borrower (other than any answer which is required to be made by applicable law), by any other person under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, (iii) Borrower or any SPE Component Entity consents to or joins in an application for the appointment of Borrowera custodian, Owner or Guarantorreceiver, trustee, or if Borrowerexaminer for Borrower (other than with the prior written consent of Lender), Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make (iv) Borrower makes an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender in connection with the Loan or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without with the prior written consent of Lender); (v) there is a breach of any provision of Article 5 (Single Purpose Entity Covenants) hereof or the separateness covenants contained in the Borrower’s or SPE Component Entity’s organizational documents (excluding, in which event each case, any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due) and such breach is cited by a court of competent jurisdiction in a final order in a proceeding under the Bankruptcy Code as a material factor in ordering the substantive consolidation of Borrower with any other Person other than a co-Borrower under the Loan; provided that the motion or pleading seeking substantive consolidation was not brought or supported by Lender shall have recourse against and, as a result thereof, Borrower is subsequently substantively consolidated in a case under the Bankruptcy Code with any Person other than a co-Borrower under the Loan, or (vi) Borrower fails to obtain L▇▇▇▇▇’s prior consent to (a) the transfer or conveyance of all or any portion of any Property, or (b) the transfer of direct or indirect equity interests in Borrower, in each case in violation of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the CollateralLoan Documents.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contraryqualifications below, except as otherwise set forth in this Section 8.01 to the contrary, (i) Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Mortgage or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against any of the members of Borrower or any direct or indirect partner, shareholder, member, manager, owner, officer, director, trustee or employee in or of Borrower (collectively, the Partners"Exculpated Parties") or Borrower, except that Lender may may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents, (ii) subject to the rights of Mortgage Lenderexcept as specifically provided herein, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower's interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents and (iii) none of the Exculpated Parties shall have any personal liability in any respect for the Loan or the obligations of Borrower contained in the Loan Documents. The provisions of this Section shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Mortgage; (c) affect the validity or enforceability of or any guaranty made in connection with the NoteLoan (including, this Agreementwithout limitation, the Guaranty) or any of the other Loan Documentsrights and remedies of Lender thereunder, or impair be taken to prevent recourse against any guarantor (including, without limitation, Metropolitan) under any guaranty made in connection with the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in Loan (including, without limitation, the Guaranty); (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate the Assignment of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to sameLeases; (f) impair the right of constitute a prohibition against Lender to bring suit seek a deficiency judgment against Borrower in order to fully realize the security granted by the Mortgage or to commence any other appropriate action or proceeding in order for a monetary judgment Lender to obtain exercise its remedies against the Recourse Distributions received by Borrower Property; or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right constitute a waiver of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions liability and obligation of Sections 2.02(g) and 4.01Borrower, inclusive of this Agreementby money judgment or otherwise, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys' fees and costs reasonably incurred) arising out of or in connection with any of the Default Collateral; following: (mi) impair fraud or intentional misrepresentation by Borrower or any guarantor in connection with the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from Loan; (ii) the gross negligence or willful misconduct of Borrower; (iii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document; (iv) the removal or disposal of any portion of the Property after an Event of Default without replacing the same with an item or items of comparable value; (v) the misapplication or conversion by Borrower orof (A) any insurance proceeds paid by reason of any loss, damage or destruction to the extent that there is sufficient cash flowProperty, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, or (C) any Rents following an Event of Default; (vi) failure to pay charges for labor or materials or other charges that can create liens on any Impositionportion of the Property; (vii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, deposit a sum equal except to the extent any Impositions into such security deposits were applied in accordance with the Basic Carrying Costs Sub-Account ; terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof; (nviii) impair the right Borrower's indemnification of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating Section 9.2 hereof; (ix) failure to maintain Borrower's status as a single purpose entity; and (x) failure to permit on-site inspections of the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable Property, failure to Borrower if (a) any proceeding, action, petition provide financial information or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating failure to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, appoint a “Contest”) any UCC sale or other material remedy exercised by Lender new property manager upon the occurrence request of Lender after an Event of Default under Default, each as required by, and in accordance with, the Loan Documents whether by making any motionterms and provisions of, bringing any counterclaim this Agreement and the Mortgage, if such condition shall continue for five (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)5) or (c) Borrower Business Days after notice thereof. (i) Borrower fails to cause Owner obtain Lender's prior written consent to deliver notice of default under any Ground Lease to Lender subordinate financing or any other Person designated in writing by Lender or voluntary lien encumbering the Property; or (ii) Borrower fails to prevent Owner from amending or modifying any Ground Lease without the obtain Lender's prior written consent of Lenderto any assignment, in which event Lender shall have recourse against all transfer, or conveyance of the assets of Borrower including, without limitation, Property or any right, title and interest of Borrower in and to therein as required by the CollateralMortgage or this Agreement.

Exculpation. Notwithstanding anything in this Agreement Buyer agrees that it does not have and will not have any claims or in causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other Loan Document to the contraryaffiliate of Seller (herein "Seller's Affiliates") or against any disclosed or undisclosed officer, except as otherwise set forth in this Section 8.01 to the contrarydirector, Lender shall not enforce the liability and obligation employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other affiliate of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement or any of the other Loan Documents by any action or proceedingWHTS, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the PartnersTishman Speyer Properties, except that Lender may bring a UCC saleL.P. and ▇▇▇▇▇▇▇, action for specific performance▇▇▇▇▇ & Co., or other appropriate action any officer, director, employee, trustee, shareholder, member, partner or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent principal of any such Default Collateralparent, subsidiary or other affiliate (collectively, "WHTS' Affiliates"), arising out of with this Agreement, the Closing Certificates, or the transactions contemplated hereby. Buyer agrees to look solely to Seller and its assets and to WHTS and its assets for the satisfaction of any liability or obligation arising under this Agreement, the Closing Documents, or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein or in the Closing Documents, and further agrees not to ▇▇▇ or otherwise seek to enforce any personal obligation against any of Seller's Affiliates or WHTS' Affiliates with respect to any matters arising out of this Agreement, the Closing Documents, or the transactions contemplated hereby. The provisions of this Section shall not10.11, however, (a) impair shall not apply to Seller's Affiliates to the validity extent of the Debt evidenced by amount a Seller's Affiliate has received after the Note or in any way affect or impair the lien date of this Agreement, if the remaining funds available to Seller to satisfy the obligations of Seller to Buyer pursuant to this Agreement and the Closing Documents are not at least equal to Five Million Dollars ($5,000,000) or such lower amount of liability or potential liability as Seller may have under such agreements. In addition, the provisions of this Section 10.11 shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P. and Whitehall Street Real Estate Limited Partnership IX (collectively, the "Members") to the extent of the amount any of the other Loan Documents or Members has received from the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability proceeds of the Note, this transactions which is the subject of the WHTS Agreement, or any of if the other Loan Documents, or impair the right of Lender remaining funds available to seek a personal judgment against the Guarantor WHTS to the extent and for satisfy the obligations guaranteed in the Guaranty; (d) impair the right of Lender WHTS to obtain the appointment of a receiver; (e) impair the right of Lender Buyer pursuant to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, Closing Documents and the foregoing provisions shall WHTS Agreement are not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum at least equal to any Impositions into the Basic Carrying Costs Sub-Account ; Five Million Dollars (n$5,000,000) impair the right or such lower amount of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right liability or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender potential liability as WHTS may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereofsuch agreements. The provisions of this Section 10.11 shall be inapplicable survive the termination of this Agreement and the Closing Date. This Section 10.11 will not apply to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating parties to bankruptcy, reorganization or insolvency, the Parking Easement or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and Development Indemnity Agreement to the Collateralextent such claim or cause of action relates solely to the Parking Easement Agreement or the Development Indemnity Agreement, as applicable.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document to the contrary, except as otherwise set forth in this Section 8.01 to the contrary, Lender (a) Optionee agrees that it shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) Optionor to perform and observe the obligations contained in this Agreement or any of the other Loan Documents by any action or proceedingproceeding against any Optionor Exculpated Party (as hereinafter defined), includingand shall not s▇▇ for, without limitation, seek or demand any action or proceeding wherein a money judgment shall be sought against Borrower any direct or the Partnersindirect member, except that Lender may bring a UCC salemanager, action for specific performanceshareholder, partner, beneficiary or other owner of beneficial ownership interests in Optionor, or other appropriate action any director, officer, agent, attorney, employee or proceeding trustee of any of the foregoing (including, without limitationeach, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral“Optionor Exculpated Party” and, (ii) subject to the rights of Mortgage Lendercollectively, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse DistributionsOptionor Exculpated Parties”) and not applied towards Debt Service under or the operation and maintenance by reason of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described or in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such Default Collateralconnection with this Agreement. The provisions of this Section 21(a) shall not, however, (ai) impair the validity constitute a waiver, release or impairment of the Debt evidenced by the Note any obligation of Optionor hereunder; or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (bii) impair the right of Lender Optionee to name Borrower Optionor as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement; . (cb) affect Optionor agrees that it shall not enforce the validity or enforceability liability and obligation of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender Optionee to seek a personal judgment against the Guarantor to the extent perform and for observe the obligations guaranteed contained in the Guaranty; this Agreement by any action or proceeding against any Optionee Exculpated Party (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documentsas hereinafter defined), and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency any money judgment against Borrower solely for the purpose any direct or indirect member, manager, shareholder, partner, beneficiary or other owner of foreclosing the Premises beneficial ownership interests in Optionee, or any part thereofdirector, officer, agent, attorney, employee or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent trustee of any of the Default Collateral; foregoing (meach, an “Optionee Exculpated Party” and, collectively, the “Optionee Exculpated Parties”) impair the ability under or by reason of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of connection with this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section 21(b) shall be inapplicable to Borrower if (a) any proceedingnot, actionhowever, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice constitute a waiver, release or impairment of default under any Ground Lease to Lender or any other Person designated in writing by Lender obligation of Optionee hereunder; or (ii) fails impair the right of Optionor to prevent Owner from amending name Optionee as a party defendant in any action or modifying any Ground Lease without suit under this Agreement. (c) The provisions of this Section 21 shall survive the prior written consent of LenderClosing, in which event Lender shall have recourse against all the expiration of the assets Option Period and the termination of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateralthis Agreement.

Exculpation. Notwithstanding anything in this Agreement Except as otherwise provided herein or in any the other Loan Document to the contrary, except as otherwise set forth in this Section 8.01 to the contraryDocuments, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained herein or in this Agreement or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty, the PIP Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, advisor, employee, agent, shareholder, Affiliate or director of any Persons described in clauses (1) through (5) above (collectively, subject to the Partnersexceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, action for specific performance, performance or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s this Agreement, the Note, the Mortgages and the other Loan Documents, and the interest in the Collateral, (ii) subject to the rights of Mortgage LenderProperties, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) Rents and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender created by this Agreement, the Note, the Mortgages and the other Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners Borrower, only to the extent of Borrower’s interest in the Properties, in the Rents and in any other collateral given to Lender. Lender, by accepting this Agreement, the Note, the Mortgages and the other Loan Documents, agrees that it shall not, except as otherwise provided in this Section 15.1, ▇▇▇ for, seek or demand any deficiency judgment against any Exculpated Party in any such Default Collateralaction or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Mortgages or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) impair constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the validity of Note, the Debt evidenced by the Note Mortgages or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (bii) impair the right of Lender to name (A) Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Mortgages or (B) HHSD as a party defendant in any action or suit for foreclosure and sale under the Operating Lease Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Article 14 of this Agreement and the Environmental Indemnity), guaranty, master lease or similar instrument made in connection with this Agreement, the Note, this Agreement, or any of the Mortgages and the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud the assignment of leases provisions contained in the Mortgages; or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (hvi) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment or other judgment on the Note against Borrower solely for the purpose of foreclosing the Premises if necessary to obtain any Insurance Proceeds or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred Awards to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateral.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) Borrowers to perform and observe the obligations contained in the Note, this Agreement Agreement, the Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower Borrowers or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrowers (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the Partnersforegoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners Borrowers only to the extent of such Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrowers or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (a1) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b2) impair the right of Lender to name each Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Security Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, the Noteindemnities set forth in Article 12 hereof, this AgreementSection 11.2 hereof, in the Guaranty and in the Environmental Indemnity) made in connection with the Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender thereunder (including, without limitation, Lender’s right to seek a personal judgment enforce said rights and remedies against each Borrower and/or Guarantor (as applicable) personally and without the Guarantor to effect of the extent and for the obligations guaranteed in the Guarantyexculpatory provisions of this Article 13); (d4) impair the right of Lender to obtain the appointment of a receiver; (e5) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate the assignment of Borrower leases and rents contained in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to sameSecurity Instrument; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i6) impair the right of Lender to enforce the provisions of Sections 2.02(gSection 4.12(e) and 4.01, inclusive of this Agreement, even after repayment ; (7) constitute a prohibition against Lender to seek a deficiency judgment against each Borrower in full order to fully realize the security granted by Borrower of the Debt Security Instrument or to bring suit commence any other appropriate action or proceeding in order for a monetary judgment Lender to exercise its remedies against Borrower with respect to any obligation set forth in said Sectionsthe Property; or (j) prevent or in any way hinder Lender from exercising, or 8) constitute a defense, or counterclaim, or other basis for relief in respect waiver of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge enforce the liability and obligation of Borrower each Borrower, by money judgment or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ forotherwise, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateral.following:

Exculpation. Notwithstanding anything in any other terms of this Agreement Agreement, whether express or implied, or obligation at law or in equity, neither the General Partner, any Tax Representative, nor the Management Company nor their respective members, former members, assignees, employees, agents or Affiliates, nor Advisory Board members in their capacities as Advisory Board members, nor Limited Partners that designated a representative to serve on the Advisory Board in their capacities as designating Limited Partners (individually, an “Exculpated Party” and collectively, the “Exculpated Parties”) shall be liable to a Limited Partner or the Partnership for honest mistakes of judgment, or for action or inaction, taken reasonably and in good faith for a purpose that was reasonably believed to be in the best interests of the Partnership, or for losses due to such mistakes, action or inaction, or to the negligence, dishonesty, or bad faith of any employee, broker, or other Loan Document agent of the Partnership, provided that such employee, broker, or agent was selected, engaged or retained and supervised with reasonable care. Notwithstanding any of the foregoing to the contrary, except as otherwise set forth in this Section 8.01 to the contrary, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partners, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such Default Collateral. The provisions of this Section 10.12 shall notnot be construed so as to relieve (or attempt to relieve) any Exculpated Party of any liability by reason of criminal conduct, howeverrecklessness, fraud, intentional wrongdoing or gross negligence (aexcept that such exclusion for gross negligence shall not apply to liability arising out of or relating to the service of an Exculpated Party as a director, manager, officer, member or the equivalent of a person any securities of which the Partnership owns or has owned) impair or to the validity of extent (but only to the Debt evidenced by extent) that such liability may not be waived, modified or limited under applicable law, but shall be construed so as to effectuate the Note or in any way affect or impair the lien provisions of this Agreement or any Section 10.12 and of Section 10.13 to the other Loan Documents or the right fullest extent permitted by law. The General Partner may consult with counsel and accountants in respect of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant Partnership affairs and be fully protected and justified in any action or suit for judicial foreclosure and sale under this Agreement; (c) affect inaction that is taken in accordance with the validity advice or enforceability opinion of the Notesuch counsel or accountants, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower counsel and/or accountants shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateralbeen selected with reasonable care.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document (a) Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the Partnersforegoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Collateral, Property (ii) subject to the rights of Mortgage Lenderor any portion thereof), the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (a1) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Security Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Note, this Agreement, Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the other Loan Documentsrights and remedies of Lender thereunder (including, or without limitation, ▇▇▇▇▇▇’s right to enforce said rights and remedies against ▇▇▇▇▇▇▇▇ and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the right rights of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (dA) impair the right of Lender to obtain the appointment of a receiverreceiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (e5) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or the assignment of leases and rents contained in the Security Instrument and in any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i6) impair the right of Lender to enforce the provisions of Sections 2.02(gSection 4.12(e) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or ; (7) constitute a prohibition against Lender to bring suit for seek a monetary deficiency judgment against Borrower with respect in order to fully realize the security granted by the Security Instrument or to commence any obligation set forth other appropriate action or proceeding in said Sectionsorder for Lender to exercise its remedies against the Property (or any portion thereof); or (j) prevent or in any way hinder Lender from exercising, or 8) constitute a defense, or counterclaim, or other basis for relief in respect waiver of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any Loss actually incurred by ▇▇▇▇▇▇ (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following: (i) fraud or intentional material misrepresentation by Borrower, any Mezzanine Borrower, any SPE Component Entity, any Mezzanine SPE Component Entity, Sponsor, any Affiliated Manager, Guarantor or any director, officer, beneficiary, shareholder, partner, member, employee or agent acting on behalf of any of the foregoing (each, a “Recourse Party”) in connection with the Loan; (ii) willful misconduct of any Recourse Party in connection with the Loan; (iii) the breach of any indemnification provision in the Loan Documents concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto; (iv) material physical waste to any Property caused by the intentional acts of any Recourse Party, but only to the extent there is sufficient cash flow from the Properties to prevent such physical waste and such cash flow is made available by Lender for the purpose of preventing such physical waste; (v) the removal of any property in contravention of the Loan Documents during the continuance of an Event of Default other than in the ordinary course of business; (vi) the misappropriation or conversion of any of the following by a monetary judgment against Recourse Party in contravention of the Loan Documents: (A) any insurance proceeds received by Borrower by reason of any Casualty, (B) any Awards or other amounts received by Borrower from a governmental authority in connection with a Condemnation of all or a portion of the Property, or (C) any revenues generated by the Properties; (vii) any Security Deposits, advance deposits or any other deposits collected with respect to any misapplication Property which are not delivered to Lender upon a foreclosure of such Property or conversion of Loss Proceedsaction in lieu thereof, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor except to the extent any such Security Deposits were applied in accordance with the terms and conditions of Guarantor’s liability under any guaranty delivered of the applicable Lease; (viii) any litigation or other legal proceeding related to the Loan filed by Guarantor a Recourse Party with respect to same; (l) impair the right effect of Lender to sdelaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with the efforts of ▇▇▇▇▇▇ for, seek or demand a deficiency judgment against Borrower solely for to exercise any rights and remedies available to Lender during the purpose continuance of foreclosing the Premises or any part thereof, or realizing upon the Default Collateralan Event of Default; provided, however, that there shall be no liability hereunder on account of, and the foregoing shall not restrict, ▇▇▇▇▇▇▇▇’s or Guarantor’s right to, dispute, in good faith, whether the relevant Event of Default shall have occurred or whether an action taken by Lender pursuant to the Loan Documents is permitted thereby, nor shall Borrower be restricted from, or have liability hereunder for, bringing a good faith counterclaim which if not raised in the foreclosure proceeding would be barred, and which does not seek to enjoin the enforcement action by ▇▇▇▇▇▇; (ix) Borrower fails to obtain ▇▇▇▇▇▇’s prior written consent to any additional indebtedness or voluntary lien encumbering any Property and not permitted by the Loan Documents; (x) a material breach by Borrower of Section 5.5; (xi) intentionally omitted; (xii) (A) any voluntary termination of any PILOT Lease and/or PILOT Document or transfer or surrender of any PILOT Lease and/or PILOT Document (including any PILOT Bond) by Borrower without ▇▇▇▇▇▇’s prior written consent other than in connection with Borrower acquiring the fee estate from the applicable PILOT Lessor or as otherwise expressly permitted under this Agreement, (B) any termination of any PILOT Lease and/or PILOT Document as a result of a foreclosure of the applicable Security Instrument or deed in lieu thereof or (C) Borrower’s or the applicable Tenant’s failure to comply with or Borrower’s or the applicable Tenant’s breach of any PILOT Lease and/or PILOT Document that results in (x) a reduction of any tax abatement and/or mandatory repayment of any past or current tax abatement under such PILOT Lease and/or PILOT Document, as applicable, (y) termination of such PILOT Lease and/or PILOT Document, as applicable, and the benefits thereunder in favor of Borrower or Tenant or (z) a default by such Borrower under the applicable Lease for such PILOT Property (and, in any such deficiency judgment referred case, Losses shall include lost rental income); provided, that, in each case, the liability with respect to this Section 13.1(a)(xii) shall not exceed the Allocated Loan Amount of the applicable PILOT Property; (xiii) other than as set forth in Section 13.1(b)(v), a breach by Borrower of any covenant of Article 5 of this Agreement documents (excluding any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due); and/or (xiv) any liability or obligation of Borrower relating to the Previously-Owned Property. (b) Notwithstanding anything to the contrary in this clause (l) shall be enforceable against Borrower and Guarantor only to Agreement, the extent of Note or any of the Default Collateral; Loan Documents, (mA) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; Debt owing to Lender in accordance with the Loan Documents, and (pB) impair the right of Lender Debt shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; that: (ri) impair the right of Lender to bring suit for a monetary judgment Borrower or any SPE Component Entity or any Affiliate thereof files, or joins in the event that filing of, a petition against Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy CodeCode or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited (or otherwise colludes with) petitioning creditors for any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed involuntary petition against Borrower, Owner or Guarantor and consented to or acquiesced in by (ii) Borrower or Owner any SPE Component Entity or any Affiliate thereof files an answer consenting to an involuntary petition filed against Borrower (other than any answer which is required to be made by applicable law), by any other person under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law, (iii) Borrower or any SPE Component Entity consents to or joins in an application for the appointment of Borrowera custodian, Owner or Guarantorreceiver, trustee, or if Borrowerexaminer for Borrower (other than with the prior written consent of Lender), Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make (iv) Borrower makes an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender in connection with the Loan or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without with the prior written consent of Lender); (v) there is a breach of any provision of Article 5 (Single Purpose Entity Covenants) hereof or the separateness covenants contained in the Borrower’s or SPE Component Entity’s organizational documents (excluding, in which event each case, any provision requiring each Borrower to remain solvent, maintain adequate capital or pay its debts as they come due) and such breach is cited by a court of competent jurisdiction in a final order in a proceeding under the Bankruptcy Code as a material factor in ordering the substantive consolidation of Borrower with any other Person other than a co-Borrower under the Loan; provided that the motion or pleading seeking substantive consolidation was not brought or supported by Lender shall have recourse against and, as a result thereof, Borrower is subsequently substantively consolidated in a case under the Bankruptcy Code with any Person other than a co-Borrower under the Loan, or (vi) Borrower fails to obtain ▇▇▇▇▇▇’s prior consent to (a) the transfer or conveyance of all or any portion of any Property, or (b) the transfer of direct or indirect equity interests in Borrower or any Mezzanine Borrower, in each case in violation of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the CollateralLoan Documents.

Exculpation. (a) Notwithstanding anything in this Agreement to the contrary herein or in any of the other Loan Document Documents but subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Individual Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, any Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any Individual Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, manager, trustee, agent, or Affiliate of Borrower (but specifically excluding Guarantor subject to the Partnersterms of the Guaranty) or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, each Security Instrument and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage Lenderany Individual Property, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject Collateral given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners any Individual Borrower only to the extent of Borrower’s and any Individual Borrower’s interest in the Property, in the Rents and in any other Collateral given to Lender, and Lender, by accepting the Note, this Agreement, each Security Instrument and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any Individual Borrower or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, any Security Instrument or the other Loan Documents. The provisions of this Section 11.3 shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender to name Borrower or any Individual Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementany Security Instrument; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, Documents or any Affiliate of Borrower in connection with this Agreement, the Note guaranty or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; indemnity (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, Guaranty and the foregoing provisions shall not modify, diminish Environmental Indemnity) or discharge the liability of Borrower or Guarantor similar instrument made in connection with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability rights and remedies of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateral.thereunder;

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document (a) Subject to the contraryqualifications below, except as otherwise set forth in this Section 8.01 to the contraryno recourse shall be had against, and none of Administrative Agent or any Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against against, any Borrower Party or any direct or indirect principal, director, officer, employee, manager, beneficiary, parent, beneficial owner, shareholder, partner, member, trustee, agent, or Affiliate of any Borrower Party or any direct or indirect legal representatives, successors or assigns of any of the Partnersforegoing (collectively, the “Exculpated Parties”), except that Lender Administrative Agent, on behalf of Lenders, may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (includingto enforce the Note, without limitationthis Agreement, an action the Security Instrument and the other Loan Documents, or to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender enable Administrative Agent to realize upon (i) Borrower’s Lenders’ interest in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Administrative Agent, on behalf of Lenders, pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lenders and Administrative Agent, on behalf of Lenders, and Administrative Agent and Lenders, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not s▇▇ for, seek or demand any deficiency judgment with respect to the Loan against Borrower or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument, the other Loan Documents or otherwise. The provisions of this Section shall not, however, (a1) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b2) impair the right of Lender Administrative Agent, on behalf of Lenders, to name any Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Security Instrument; (c3) affect the validity or enforceability of any Loan Document or any guaranty in connection with the NoteLoan (including, this Agreementwithout limitation, the indemnities set forth in Article 12 hereof, the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender to seek a personal judgment against the Guarantor to the extent Agent and for the obligations guaranteed in the GuarantyLenders thereunder; (d4) intentionally omitted, (5) impair the right of Lender Administrative Agent, on behalf of Lenders, to (A) obtain the appointment of a receiverreceiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (e6) impair the right enforcement of Lender the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (7) constitute a prohibition against Administrative Agent, on behalf of Lenders, to bring suit for seek a monetary deficiency judgment against Borrower in order to fully realize the security granted by the Security Instrument or to commence any other appropriate action or proceeding in order for Administrative Agent to exercise Lenders’ remedies against the Property or any portion thereof; or (8) constitute a waiver of the right of Administrative Agent and Lenders to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual Losses incurred by Administrative Agent and/or Lenders (including actual out-of-pocket attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following: (i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan; (ii) the willful misconduct of any Borrower Party in connection with the Loan; (iii) any litigation or other legal proceeding (including, the raising of defenses) related to the Debt filed or raised by any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Administrative Agent or any Lender to exercise any rights and remedies available to Administrative Agent or any Lender as provided herein and in the other Loan Documents which is found by a court of competent jurisdiction to be without merit or brought or raised, as applicable, in bad faith; (iv) intentional physical waste to the Property in violation of the terms of this Agreement caused by any Borrower Party and/or the removal or disposal of any portion of the Property in violation of the terms of this Agreement during the continuance of an Event of Default; (v) the misappropriation or conversion by any Borrower Party, in contravention of the Loan Documents, of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents, or (D) any Security Deposits or Rents collected in advance; (vi) to the extent there exists sufficient cash flow from the Property to pay Taxes or charges for labor or materials or other charges that create liens on any portion of the Property, Borrower’s failure to pay (or Borrower’s failure to cause payment of) such Taxes or charges (except to the extent (A) sums sufficient to pay such Taxes or charges have been deposited with Administrative Agent in accordance with the terms of this Agreement or (B) such cash flow is not being made available to Borrower by Administrative Agent as a result of Administrative Agent’s exercise of its remedies under the Loan Documents) unless such Taxes or other charges are being contested as permitted hereunder; (vii) to the extent there exists sufficient cash flow from the Property to pay Insurance Premiums and/or to maintain the Policies in full force and effect, Borrower’s failure to pay (or Borrower’s failure to cause payment of) such Insurance Premiums and/or to maintain the Policies in full force and effect, in each case, as expressly provided herein (except to the (A) extent sums sufficient to pay such Insurance Premiums and/or to maintain the Policies have been deposited with Administrative Agent in accordance with the terms of this Agreement or (B) such cash flow is not being made available to Borrower by Administrative Agent as a result of Administrative Agent’s exercise of its remedies under the Loan Documents); (viii) any Security Deposits which are not delivered to Administrative Agent on behalf of Lenders by a Borrower Party following a foreclosure of the Property or action in lieu thereof, except to the extent any such Security Deposits were applied in accordance with the terms and conditions of any of the applicable Leases prior to the occurrence of an Event of Default; (ix) if as a result of the actions or inactions of Borrower or its Affiliates (including, without limitation, Borrower failing to comply with the terms of such Property Document) any Property Document is (A) materially modified in a manner adverse to Administrative Agent or any Lender or Borrower, (B) terminated, (C) cancelled or (D) otherwise ceases to exist, except in each of the foregoing cases, if such action or inaction of Borrower or its Affiliates is permitted pursuant to the terms of this Agreement and/or Administrative Agent has approved the same; (x) any representation, warranty or covenant contained in Article 5 hereof is violated or breached; provided, however, that solely with respect to fraud a breach of Section 5.1(a)(vii) that arise from Borrower’s failure to pay trade and operational indebtedness, such breach shall not result in recourse under the Loan pursuant to this clause (x), if cash flow from the Property available to Borrower is not sufficient to pay such amounts; (xi) except as set forth in Section 13.1(b) below, (A) Borrower fails to obtain Lender’s prior consent to any Prohibited Transfer as required by this Agreement (other than a Permitted Transfer) or material misrepresentation (B) any covenant contained in Section 6.6 hereof is violated or breached; and/or (xii) Borrower gives notice of termination of the Restricted Account Agreement other than in accordance with Section 8(d) of the Restricted Account Agreement in effect as of the Closing Date and the Restricted Account Agreement is terminated by Borrower, or any Affiliate Bank as a result of Borrower such notice. (b) Notwithstanding anything to the contrary in connection with this Agreement, the Note or any of the other Loan Documents, (A) Administrative Agent and the foregoing provisions Lenders shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of to have waived any right which Lender Administrative Agent and Lenders may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; Debt owing to Administrative Agent and Lenders in accordance with the Loan Documents, and (pB) impair the right of Lender Debt shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event that: (i) a Bankruptcy Event occurs; (ii) any voluntary Sale or Pledge of the Property (other than (i) an easement (except for an easement affecting the Property that interferes or impairs in a Transfer material way Borrower’s ability to use and operate the Property as currently used or that otherwise has a Material Adverse Effect), (ii) a covenant or restriction that (A) does not interfere with or impair in a material way Borrower’s ability to use and operate the Property as currently used and (B) does not have a Material Adverse Effect, and (iii) a Lease entered into at the Property (except for a lease of all or a majority of the Property, a ground lease, or a master lease)) or any direct or indirect interest in Borrower or Guarantor that results in a failure to comply with the Minimum Ownership/Control Test, in each case in violation of the provisions terms of this Agreement; Agreement (rbut excluding (x) impair any failure to comply with the right requirements in any of clause (A), (D), (E), (G) or (H) appearing in the definition of “Permitted Transfer” in Section 6.3 of this Agreement and (y) any violation as a result of a failure of a Mezzanine Lender to bring suit for a monetary judgment in comply with the event that Intercreditor Agreement); (iii) if Borrower moves its principal place of business or its books fails to obtain Administrative Agent’s prior consent (if and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing extent required under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating Loan Documents) to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner any subordinate financing or Guarantor other voluntary liens encumbering the Property that are not considered Permitted Encumbrances hereunder or (B) filed against any subordinate financing or other voluntary liens encumbering: (1) a direct interest in any subsidiary of Guarantor to the extent such subsidiary owns a direct or indirect interest in Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors ; or (b2) a direct or indirect interest in Borrower or any Affiliate contests if foreclosed upon would result in bad faith or in any material way interferes with in bad faith, directly or indirectly the Minimum Ownership/Control Test not being met; and/or (collectively, a “Contest”iv) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any representation, warranty or covenant contained in Article 5 hereof is violated or breached and such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) violation or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated breach results in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all substantive consolidation of the assets and liabilities of Borrower including, without limitation, with the assets and liabilities of any right, title and interest of Borrower in and to the Collateralother Person.

Exculpation. Notwithstanding anything in this Agreement Buyer agrees that it does not have and will not have any claims or in causes of action against any disclosed or undisclosed officer, director, employee, trustee, property manager, shareholder, partner, principal, parent, subsidiary or other Loan Document to the contrary, except as otherwise set forth in this Section 8.01 to the contrary, Lender shall not enforce the liability and obligation affiliate of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement or any of the other Loan Documents by any action or proceedingSeller, including, without limitation, ▇▇▇▇▇, ▇▇▇▇▇ Real Estate Funds, Inc., or any action officer, director, employee, trustee, shareholder, partner, or proceeding wherein a money judgment shall be sought against Borrower principal of any such parent, subsidiary or other affiliate (collectively, “Seller’s Affiliates”), arising out of or in connection with this Agreement or the Partners, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding transactions contemplated hereby (including, without limitation, an action under any documents executed pursuant hereto), except in the event of fraud or any intentional misrepresentation of such party. Buyer agrees to obtain a deficiency judgment) against Borrower look solely to Individual Sellers and their assets for the purpose satisfaction of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject to the rights of Mortgage Lenderany liability or obligation arising under this Agreement, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service transactions contemplated hereby or the operation and maintenance documents executed pursuant hereto, or for the performance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such Default Collateral. The provisions of this Section shall not, however, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement or any of the covenants, warranties or other Loan Documents agreements contained herein or therein, and, except in the right event of Lender fraud or any intentional misrepresentation of such party, further agrees not to ▇▇▇ or otherwise seek to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability of the Note, this Agreement, or personal obligation against any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower Seller’s Affiliates with respect to fraud any matters arising out of or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note transactions contemplated hereby or the other Loan Documents, and documents executed pursuant hereto. Without limiting the generality of the foregoing provisions shall not modifyof this Section 13(o), diminish Buyer hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever it may now or discharge the hereafter have against Seller’s Affiliates (except for a claim or cause of action for fraud or intentional misrepresentation against such party), and hereby unconditionally and irrevocably releases and discharges Seller’s Affiliates from any and all liability whatsoever which may now or hereafter accrue in favor of Borrower or Guarantor Buyer against Seller’s Affiliates (except to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect relating to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower fraud or any of its Affiliates includingintentional misrepresentation by such party), without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish in connection with or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive arising out of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, transactions contemplated hereby or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereofdocuments executed pursuant hereto. The provisions of this Section 13(o) shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under survive the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or termination of this Agreement and the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the CollateralClosing.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations Obligations contained in the Note, this Agreement Agreement, the Mortgage or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or affiliate of Borrower (but specifically excluding Guarantor to the Partnersextent of Guarantor’s liability pursuant to the Guaranty) or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Gross Revenues or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property, in the Gross Revenues and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties, in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Mortgage; (c) affect the validity or enforceability of any of the Note, this Agreement, Loan Documents or any guaranty made in connection with the Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guarantythereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of constitute a prohibition against Lender to bring suit for seek a monetary deficiency judgment against Borrower with respect in order to fraud fully realize the security granted by the Mortgage or material misrepresentation by Borrower, to commence any other appropriate action or any Affiliate of Borrower proceeding in connection with this Agreement, order for Lender to exercise its remedies against the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to sameProperty; (f) impair the right enforcement of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower assignment of leases and rents contained in the Mortgage and in any other Loan Documents; or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right constitute a waiver of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions liability and obligation of Sections 2.02(gBorrower, by money judgment or otherwise, to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) and 4.01, inclusive arising out of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis connection with the following (all such liability and obligation of Borrower for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note following being referred to herein as provided in the Loan Documents; “Borrower’s Recourse Liabilities”): (ki) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication fraud or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of intentional misrepresentation by Borrower or Guarantor to any Borrower Party in connection with the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; Loan; (lii) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, or any Borrower Party in connection with the Loan; (iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party that intentionally interferes with Lender exercising any rights and remedies available to Lender as provided herein and in the other Loan Documents only to the extent that there is a court of competent jurisdiction, in a final non-appealable decision, finds the applicable defenses were not raised in good faith by such Borrower Party; (iv) physical waste to the Property (or any portion thereof) caused by intentional acts or intentional omissions of Borrower, or any Borrower Party, or the removal or disposal of any portion of the Property (including, without limitation, any personal Property) after an Event of Default (except to the extent (i) the same was replaced with Property of the same utility and of the same or greater value or (ii) such portion of the Property was obsolete and no longer required or beneficial for the operation of the Property, in which case no replacement shall be required); provided, however, “waste” shall not include (a) any waste at the Property caused by a lack of sufficient cash flowflow at the Property or (b) Lender’s refusal to permit such cash flow to be applied (provided, however, the foregoing clause (b) shall not apply if Lender cannot release cash flow because such cash flow is being held by Lender and Lender’s access to such amounts is restricted or constrained in any manner by applicable Legal Requirements, injunction or other court order, or as a result of any action, inaction or omission by Borrower, Guarantor or any other Borrower Party); (v) the misappropriation or conversion by Borrower or any Borrower Party of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Gross Revenues (including Rents, Insurance Proceeds and security deposits, advance deposits or any other deposits), in each case, in violation of express conditions of the Loan Documents; (vi) any security deposits, advance deposits or any other deposits collected with respect to any Individual Property which are not delivered to Lender upon a foreclosure of such Individual Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof; (vii) the seizure or forfeiture of any Individual Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by Borrower or any Borrower Parties; (viii) the breach of any representation, warranty, covenant or indemnification provision in the Mortgage or in any other Loan Document concerning environmental laws, hazardous substances and/or asbestos and any indemnification of Lender with respect thereto in either document; (ix) Borrower fails to obtain Lender’s prior consent to any subordinate financing secured by the Property (other than Permitted Indebtedness) or other voluntary Lien encumbering the Property (it being acknowledged that the foregoing shall not apply to Liens arising from Taxes, labor, materials or other charges that result in Liens on any portion of any of the Properties); and/or (x) if the Ground Lease is terminated, failure to pay any ImpositionTaxes and/or charges for labor or materials, or in lieu thereof, deposit a sum equal to other charges that can create Liens on any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event portion of the exercise Property (other than Permitted Encumbrances or any Lien being contested in good faith in accordance with the terms hereof); provided, however, Borrower shall not be liable to the extent (A) cash flow from the Property is insufficient to pay such Taxes or charges for labor or materials or other charges that can create Liens on any portion of the Property or (B) sums sufficient to pay such Taxes have been deposited with Lender in accordance with the terms of this Agreement and Lender’s access to such sums is not restricted or constrained in any manner by applicable Legal Requirements, injunction or other court order, or as a result of any right action, inaction or remedy under omission by Borrower, Guarantor or any federal, state other Borrower Party. Notwithstanding anything to the contrary in this Agreement or local forfeiture laws resulting in the loss any of the lien of this Agreementother Loan Documents, or the priority thereof, against the Collateral; (oA) Lender shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt Obligations or to require that all collateral shall continue to secure all of the Debt; Obligations owing to Lender in accordance with the Loan Documents, and (pB) impair the right of Lender Obligations shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation that any of the provisions of this Agreementfollowing occur (each, a “Springing Recourse Event”): (i) Borrower files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) Borrower or Guarantor expressly consents to a substantive consolidation with any other Person; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business unless such consolidation is discharged, stayed or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender dismissed within thirty (30) days prior written notice; or following the occurrence of such consolidation; (siii) impair the right filing of Lender to bring suit for a monetary judgment in the event that an involuntary petition against Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy CodeCode or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower colludes with or otherwise assists such Person, and/or Borrower solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower by any Person; (iv) Borrower files an answer consenting to, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvencyotherwise acquiescing in, or the arrangement or adjustment of debtsjoining in, shall be (A) filed by Borrower, Owner or Guarantor or (B) any involuntary petition filed against Borrower, Owner it by any other Person under the Bankruptcy Code or Guarantor and consented to any other Federal or acquiesced in by state bankruptcy or insolvency law; (v) Borrower or Owner any Affiliate, officer, director or representative which controls Borrower consents in writing to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee or examiner for Borrower or any Affiliate portion of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make the Property; (vi) Borrower makes an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests admits, in bad faith writing or in any material way interferes with legal proceeding, its insolvency or inability to pay its debts as they become due; (vii) Borrower fails to obtain Lender’s prior consent to any Transfer of the Property or any interest therein or any Transfer of any direct or indirect interest in bad faithBorrower, directly in either case as required by the Mortgage or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (this Agreement other than a compulsory counterclaim)Permitted Transfer; provided, claiming any defensehowever, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower there shall have be no liability under this clause (b)vii) for a Transfer that would be a Permitted Transfer but for Borrower’s failure to provide (A) notice or (c) Borrower (i) fails copies of the documentation related to cause Owner to deliver notice of default under any Ground Lease such Transfer to Lender or (B) Lender the opportunity to review any documentation in connection with such Transfer; or (viii) Borrower fails to comply with any provision of Section 4.4 hereof and such failure causes a substantive consolidation of Borrower with any other Person designated in writing connection with any federal or state bankruptcy proceeding unless such consolidation was involuntary and not consented to by Lender Borrower or Guarantor and is discharged, stayed or dismissed within thirty (ii30) fails to prevent Owner from amending or modifying any Ground Lease without days following the prior written consent occurrence of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateralsuch consolidation.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnershipBorrower’s members, its or their direct or indirect constituent partners or any of their respective managers, partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directorsofficers, principalsdirectors or Affiliates, officers whether director or employeesindirect, or (d) if Borrower or any of its direct or indirect owners is a limited liability companycollectively, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “PartnersBorrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the PartnersBorrower, except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Collateral or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees for itself and its successors and assigns that it and its successors and assigns shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such Default Collateralaction or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this the Pledge Agreement; (c) affect the validity or enforceability of any guaranty made in connection with the Note, this Agreement, Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guarantythereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this the Pledge Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair constitute a prohibition against Lender seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the Collateral; or (g) constitute a waiver of the right of Lender to bring suit for enforce the liability and obligation of Borrower under the terms of this Agreement, by money judgment or otherwise, to the extent of any actual out of pocket loss, damage, cost, expense, liability, claim or other obligation suffered or incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following: (1) fraud or material misrepresentation or failure to disclose a monetary judgment to obtain the Recourse Distributions received material fact by Borrower or any of its Affiliates includingthe Borrower Parties in connection with the Loan; (2) the gross negligence or willful misconduct of Borrower or any of the Borrower Parties; (3) the breach of any representation, without limitationwarranty, covenant or indemnification provision in this Agreement or the right to bring suit for a monetary judgement to proceed against Environmental Indemnity concerning environmental laws, hazardous substances and asbestos and any Guarantor, indemnification of Lender with respect thereto in any of such documents; (4) willful physical waste of the Property to the extent that sufficient cash flow of Guarantor’s liability under the Property is available to prevent such waste; (5) the removal or disposal of any guaranty delivered portion of the Property after an Event of Default; (6) the misappropriation or conversion by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability on behalf of Borrower of (A) any Insurance Proceeds paid by reason of any loss or Guarantor damage, (B) any Award received in connection with respect to same; a condemnation or similar proceeding, (gC) impair any Rents or other revenues derived from the right Property following an Event of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s Default or Owner’s misappropriation of tenant security deposits or Rent collected (D) any Rents paid more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability advance following an Event of Default; (7) if Borrower or Guarantor any other entity that is required to be a Single-Purpose Entity fails to comply with the extent of Guarantor’s liability SPE Covenants or maintain its status as a Single-Purpose Entity; or (8) if any Transfer occurs other than as permitted by this Agreement. (a) Borrower filing a voluntary petition under the Bankruptcy Code or any guaranty delivered by Guarantor with respect to sameother Federal or state bankruptcy or insolvency law; (hb) impair the right filing of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment an involuntary petition against Borrower with respect to any obligation set forth in said Sections; (j) prevent under the Bankruptcy Code or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against Federal or state bankruptcy or insolvency law by any or all of the collateral securing the Note as provided other Person in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of which Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default CollateralBorrower Parties colludes with or otherwise assists such Person, or soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (bc) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateral.Parties filing an answer

Exculpation. (a) Notwithstanding anything in this Agreement or in any other the Loan Document Documents to the contrary, except as otherwise but subject to the qualifications below, ▇▇▇▇▇▇ and Borrower agree that: (i) Borrower shall be liable upon the Debt and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor; provided, however, that in the event (A) of fraud, wilful misconduct or material misrepresentation by Borrower, its members, its principals, its affiliates, its agents or its employees or by any Guarantor or any Indemnitor in connection with the loan evidenced by this Note, (B) of ▇▇▇▇▇▇▇▇'s breach or default under Section 8.2 of the ▇▇▇▇▇▇ GUARANTY TRUST COMPANY Security Instrument, or (C) the Property or any part thereof becomes an asset in a voluntary bankruptcy or insolvency proceeding, the limitation on recourse set forth in this Section 8.01 Subsection 10(a) will be null and void and completely inapplicable, and this Note shall be with full recourse to Borrower. (ii) If a default occurs in the contrarytimely and proper payment of all or any part of the Debt, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement Note or any of the other Loan Documents Security Instrument by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the PartnersBorrower, except that Lender may bring a UCC saleforeclosure action, action for specific performance, performance or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s the Security Instrument, the Other Loan Documents and the interest in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) Rents and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender created by the Security Instrument and the Other Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of ▇▇▇▇▇▇▇▇'s interest in the Property, in the Rents and in any such Default Collateralother collateral given to Lender. ▇▇▇▇▇▇, by accepting this Note and the Security Instrument, agrees that it shall not, except as otherwise herein provided, sue for, seek or demand any deficiency judgment against Borrower in any action or proceeding, under or by reason of or under or in connection with this Note, the Other Loan Documents or the Security Instrument. (iii) The provisions of this Section Subsection 10(a) shall notnot (A) constitute a waiver, howeverrelease or impairment of any obligation evidenced or secured by this Note, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement or any of the other Other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderSecurity Instrument; (bB) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Security Instrument; (cC) affect the validity or enforceability of the any indemnity, guaranty, master lease or similar instrument made in connection with this Note, this Agreementthe Security Instrument, or any of the other Other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (dD) impair the right of Lender to obtain the appointment of a receiver; (eE) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower the Assignment executed in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to sameherewith; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (iF) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower Article 11 of the Debt Security Instrument; or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (kG) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand obtain a deficiency judgment or judgment on this Note, against Borrower solely for if necessary to obtain any insurance proceeds or condemnation awards to which ▇▇▇▇▇▇ would otherwise be entitled under the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default CollateralSecurity Instrument; provided, however, that any Lender shall only enforce such deficiency judgment referred against the insurance proceeds and/or condemnation awards. (iv) Notwithstanding the provisions of this Article to in this clause (l) the contrary, Borrower shall be enforceable against personally liable to Lender for the Losses it incurs due to: (A) the misapplication or misappropriation of Rents; (B) the misapplication or misappropriation of insurance proceeds or condemnation awards; (C) Borrower's failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower and Guarantor only to the extent of any not replaced with Personal Property of the Default Collateralsame utility and of the same or greater value; (mD) impair the ability any act of Lender actual waste or arson by Borrower, any principal, affiliate, general partner or member thereof or by any Indemnitor or any Guarantor; (E) any fees or commissions paid by Borrower to bring suit for monetary judgment against Borrower with respect to arson any principal, affiliate, general partner or physical waste to member of Borrower, any Indemnitor or any Guarantor in violation of the Collateral terms of this Note, the Security ▇▇▇▇▇▇ GUARANTY TRUST COMPANY Instrument or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, Other Loan Documents; (F) ▇▇▇▇▇▇▇▇'s failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into comply with the Basic Carrying Costs Sub-Account ; (n) impair the right provisions of Lender to bring a suit for a monetary judgment against Borrower in the event Section 11.2 of the exercise of Security Instrument; or (G) any right or remedy under any federal, state or local forfeiture laws resulting in the loss breach of the lien of this Agreement, or the priority thereof, against the Collateral; Environmental Indemnity. (ob) Nothing herein shall be deemed to be a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease owing to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without accordance with this Note, the prior written consent of Lender, in which event Lender shall have recourse against all of Security Instrument and the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the CollateralOther Loan Documents.

Exculpation. Notwithstanding anything Effective as of the Effective Date, the Exculpated Parties shall neither have nor incur any liability to any Person or Entity for any claims or Causes of Action or for any act taken or omitted to be taken on or after the Petition Date and prior to or on the Effective Date in connection with, or related to, the administration of the Chapter 11 Cases, commencement of the Chapter 11 Cases, pursuit of Confirmation and consummation of this Agreement Plan, making Distributions, the Disclosure Statement, the Sale Process, the 363 Sale Order, or the solicitation of votes for, or Confirmation of, this Plan; the occurrence of the Effective Date; the administration of this Plan or the property to be distributed under this Plan; the issuance of securities under or in any other Loan Document to connection with this Plan; the contrarypurchase, except as otherwise set forth in this Section 8.01 to the contrary, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employeessale, or (d) if Borrower rescission of the purchase or sale of any asset or security of its direct the Debtors; or indirect owners is a limited liability company, any the transactions or documentation in furtherance of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement or any of the other Loan Documents by any action or proceedingforegoing, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partners, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject including but not limited to the rights RSA; or any other postpetition act taken or omitted to be taken in connection with or in contemplation of Mortgage Lenderthe restructuring of the Debtors, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance approval of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Disclosure Statement or Confirmation or consummation of this Plan; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such Default Collateral. The foregoing provisions of this Section exculpation shall notnot operate to waive or release: (i) any Causes of Action arising from willful misconduct, howeveractual fraud, (a) impair the validity or gross negligence of such applicable Exculpated Party as determined by Final Order of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement Bankruptcy Court or any other court of competent jurisdiction; and/or (ii) the other Loan Documents rights of any Person or the right of Lender Entity to enforce this Agreement during Plan and the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action contracts, instruments, releases, indentures, and other agreements and documents delivered under or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note Plan or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender assumed pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower Plan or Final Order of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default CollateralBankruptcy Court; provided, howeverfurther, that any such deficiency judgment referred to in this clause (l) each Exculpated Party shall be enforceable against Borrower and Guarantor only entitled to rely upon the extent advice of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Impositioncounsel concerning its respective duties pursuant to, or in lieu thereofconnection with, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event above referenced documents, actions or inactions. The foregoing exculpation shall be effective as of the exercise of any right Effective Date without further notice to or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision order of the Bankruptcy Code Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Person. Notwithstanding the foregoing, nothing in this Article IX.D shall or shall be deemed to file a claim for prohibit the full amount of Debtors or the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting Reorganized Debtors from asserting and enforcing any claims, actions obligations, suits, judgments, demands, debts, rights, Causes of Action or proceedings initiated by Borrower (or liabilities they may have against any Affiliate of Borrower) alleging Person that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event based upon an alleged breach of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business confidentiality or its books and records relating non-compete obligation owed to the Collateral which are governed by Debtors or the UCCReorganized Debtors, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit in each case unless otherwise expressly provided for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereofthis Plan. The provisions of this Section shall Exculpation will be inapplicable to Borrower if (a) any proceedingin addition to, actionand not in limitation of, petition or filing under the Bankruptcy Codeall other releases, or any similar state or federal law now or hereafter in effect relating to bankruptcyindemnities, reorganization or insolvencyexculpations, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender applicable law or (ii) fails to prevent Owner rules protecting such Exculpated Parties from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateralliability.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Pledge or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the PartnersBorrower, except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Pledge and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Collateral or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Collateral and Lender, by accepting the Note, this Agreement, the Pledge and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such Default Collateralaction or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge or the other Loan Documents. The provisions of this Section shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Pledge; (c) affect the validity or enforceability of or any Guaranty made in connection with the Note, this Agreement, Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guarantythereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Collateral; or (f) constitute a waiver of the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by enforce the liability and obligation of Borrower, by money judgment or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantorotherwise, to the extent of Guarantor’s liability under any guaranty delivered loss, damage, cost, expense, liability, claim or other obligation incurred by GuarantorLender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following: (i) fraud or intentional misrepresentation by Borrower, Owner, Guarantor or any Affiliate thereof in connection with the Loan; (ii) waste by Borrower, Owner, Guarantor or any Affiliate thereof to one or more of the Individual Properties; (iii) the gross negligence or willful misconduct of Borrower, Owner, Guarantor or any Affiliate thereof; (iv) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto; (v) the foregoing provisions shall not modifyremoval or disposal by Borrower, diminish Owner, Guarantor or discharge any Affiliate thereof of any portion of one or more of the liability Properties after the occurrence and during the continuance of an Event of Default; (vi) the misappropriation or conversion by Borrower or Guarantor Owner of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with respect to same; a Condemnation, (gC) impair any Rents after the right occurrence and during the continuance of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s an Event of Default, or Owner’s misappropriation of tenant security deposits or Rent collected (D) any Rents paid more than one (1) month in advance; (vii) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Properties; (viii) any security deposits, and advance deposits or any other deposits collected or held by Borrower, Owner or any Affiliate thereof with respect to the foregoing provisions shall Properties which are not modifydelivered to Senior Lender upon a foreclosure of the Properties or acceptance of a deed in lieu thereof or a foreclosure of the Collateral, diminish or discharge the liability of Borrower or Guarantor except to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to security deposits were applied in this clause (l) shall be enforceable against Borrower accordance with the terms and Guarantor only to the extent conditions of any of the Leases prior to the occurrence of the Event of Default Collateral; that gave rise to such foreclosure or action in lieu thereof; (mix) impair any amounts received by Borrower or any Affiliate thereof that are not deposited into the ability Lockbox Account to the extent required to be so deposited hereunder or under the Cash Management Agreement; (x) if (1) Borrower or Owner fails to permit on-site inspections of any of the Properties, subject to terms of each respective Operating Lease, upon the request of Lender or (2) Borrower fails to bring suit for monetary judgment against provide financial information concerning Borrower, Owner, Principal or Guarantor in its possession (or financial information which could be obtained by Borrower with respect through commercially reasonable efforts) or (3) Borrower fails to arson provide financial information in its possession or physical waste to control (or of financial information which could be obtained by Borrower through commercially reasonable efforts) concerning any Operator Tenant or collections under the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower orOperating Leases, in each case, to the extent that there is sufficient cash flow, failure to pay any Imposition, or required by and in lieu thereof, deposit a sum equal to any Impositions into accordance with the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower terms and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; or (rxi) impair any breach of the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books representations and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information warranties set forth in Section 4.1.30(a) and (b) hereof (except for any UCC Financing Statements relating to representation or warrants that Borrower or Principal will remain solvent, maintain adequate capital or pay its debts or liabilities as the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if same may become due); and (a) any proceeding, action, Borrower or Owner filing a voluntary petition or filing under the Bankruptcy Code, Code or any similar other Federal or state bankruptcy or federal law now insolvency law; (b) the filing of an involuntary petition against Borrower or hereafter in effect relating to bankruptcyOwner under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, reorganization which is assisted, supported, aided or insolvency, or the arrangement or adjustment of debts, shall be (A) filed abetted by Borrower, Owner or and/or Guarantor or with respect to which Borrower, Owner and/or Guarantor fails to contest (Bwhere good grounds exist for such contest); (c) Borrower or Owner filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (d) Borrower or Owner consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Owner or Guarantor and consented to any material portion of any Property or acquiesced in by the Collateral; or (e) Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an making a general assignment for the benefit of creditors creditors, or (b) Borrower or any Affiliate contests admitting, in bad faith writing or in any material way interferes with legal proceeding, its insolvency or inability to pay its debts as they become due; (ii) if Borrower or Owner fails to maintain its status as a Single Purpose Entity, as required by, and in bad faithaccordance with, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence terms and provisions of an Event of Default under the Loan Agreement or the other Loan Documents whether (except for any covenant to remain solvent, maintain adequate capital or pay its debts or liabilities as they become due or the additional covenant to comply with any assumption in the Insolvency Opinion in any Additional Insolvency Opinion); (iii) if Borrower fails to obtain Lender’s prior consent to any Indebtedness or voluntary Lien encumbering one or more of the Individual Properties or any material portion of one or more of the Individual Properties or all or any part of the Collateral the extent required by making the Loan Agreement; or (iv) if Borrower fails to obtain Lender’s prior consent to any motion, bringing any counterclaim Transfer (other than a compulsory counterclaimforeclosure or acceptance of a deed in lieu of foreclosure with respect to one or more of the Properties by Senior Lender or a foreclosure by Lender of or Lender’s acceptance of an assignment in lieu of foreclosure with respect to all or part of the Pledged Collateral) to the extent required by the Loan Agreement). Notwithstanding anything to the contrary in any of the Loan Documents, claiming any defense, seeking any injunction including without limitation anything to the contrary in the immediately preceding paragraphs or other restraint, commencing any action, or otherwise elsewhere in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contestthis Agreement, Borrower shall not have no liability under this clause any obligations or liabilities hereunder for any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (b)including reasonable attorneys’ fees and costs reasonably incurred) arising out of or (c) Borrower in connection with (i) fails to cause Owner to deliver notice any action or inaction of default under any Ground Lease to Lender Pledged Company or any other Person designated in writing owned or controlled by Lender any Pledged Company but only to the extent such action or inaction results from the exercise of control over any Pledged Company or such entity owned or controlled by any Pledged Company by Lender, (ii) fails to prevent Owner from amending any act or modifying any Ground Lease without omission which occurs after the prior written consent completion of Lender, in which event Lender shall have recourse against all a private or public sale of the assets Pledged Collateral or after acceptance of Borrower including, without limitation, any right, title and interest an assignment in lieu of Borrower in and foreclosure with respect to the CollateralPledged Company Interests or (iii) any act or omission relating to any Individual Property which occurs after Lender completes a foreclosure with respect to such Individual Property or accepts a deed in lieu of foreclosure with respect to such Individual Property.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) Borrowers to perform and observe the obligations contained in the Notes, this Agreement Agreement, the Mortgage or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partnersany Borrower, except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest in under the CollateralNotes, (ii) subject to the rights of Mortgage Lenderthis Agreement, the Rent to Mortgage and the extent received by Borrower during other Loan Documents, or in any Property, the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as Rents, the “Recourse Distributions”) and not applied towards Debt Service IP or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against any Borrower and the Partners only to the extent of such Borrower’s interest in its Property, in its Rents, in the IP and in any other collateral given by it to Lender, and Lender, by accepting the Notes, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against any Borrower in any such Default Collateralaction or proceeding under, or by reason of, or in connection with, the Notes, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 9.4 shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender to name any Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Mortgage; (c) affect the validity or enforceability of or any guaranty made in connection with the NoteLoan, this Agreementincluding, without limitation, the Non-Recourse Guaranty, or any of the other Loan Documents, or impair the right rights and remedies of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guarantythereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender seeking a deficiency judgment against any Borrower in order to fully realize the security granted by the Mortgage or commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against any Property or the IP; or (g) constitute a waiver of the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by enforce the liability and obligation of any Borrower, by money judgment or otherwise, to the extent of any Affiliate actual loss, damage (excluding any lost revenue, diminution of Borrower value and other consequential damages), reasonable cost, reasonable expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following acts (or failures to act) which occur on or after the Closing Date: (i) fraud or intentional misrepresentation by any Borrower, BREF HR, Guarantor or any of their respective principals, officers, agents or employees, including Resort Manager, Liquor Manager and Gaming Operator (collectively, “Manager Parties”), in connection with the Loan; (ii) physical waste to any Property arising from the intentional misconduct or gross negligence of any Borrower, BREF HR, Guarantor or any of their respective principals, officers, agents or employees, including Manager Parties, and/or any removal of any asset forming a part of any Property in violation of this Agreement, the Note Agreement or the other Loan Documents, ; (iii) any and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor all liabilities relating to the extent employees of Guarantor’s liability Gaming Borrower, including, but not limited to, all obligations and liabilities of Gaming Borrower under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or Employee Lease, including any of its Affiliates such liabilities as to which Gaming Borrower and LVHR are “co-employers” thereunder; (iv) the misappropriation or conversion by any Borrower, by any Person Controlled by any Borrower, including, without limitation, the right to bring suit for any Affiliated Manager, a monetary judgement to proceed against Liquor Manager who is an Affiliate of any GuarantorBorrower or a Gaming Operator who is an Affiliate of any Borrower, by any agent of any Borrower, or by any other Person with whom any Borrower shall collude or cooperate, or by any Manager Party, of (A) any Insurance Proceeds paid by reason of any Casualty, to the extent so misappropriated or converted; (B) any Awards received in connection with a Condemnation, to the extent so misappropriated or converted; (C) any Rents or other Gross Income from Operations not delivered to Lender following and during the continuance of Guarantor’s liability an Event of Default and not otherwise used to pay actual, customary Operating Expenses reflected on the Approved Annual Budget then in effect, including, without limitation, (I) any income, proceeds or other amounts received by any Borrower or any Affiliate thereof under any guaranty delivered by Guarantorthe Casino Component Lease or the Gaming Management Agreement, and and/or (II) without duplication of the foregoing provisions shall not modifyclause (I), diminish any income, proceeds or discharge revenue generated from gaming activities at any Property, in each of the liability of Borrower foregoing instances, to the extent so misappropriated or Guarantor with respect to sameconverted; (gD) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected any Rents paid more than one (1) month in advanceadvance in violation of this Agreement or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under so misappropriated or converted; and/or (E) any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01security deposits, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent so misappropriated or converted; (v) the failure to pay (or to deposit into the Reserve Funds amounts sufficient to pay) all Taxes and all other costs giving rise to any Lien on any portion of Guarantor’s liability under any guaranty delivered by Guarantor Property or the IP with respect to same; (l) impair the right of Lender to s▇▇ for, seek priority over or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only equal to the extent of any Lien of the Default Collateral; (m) impair Loan Documents in violation of this Agreement or the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower orother Loan Documents, to the extent that there is sufficient cash flowGross Income from Operations to make such payments (or deposits, as applicable); (vi) if any Borrower fails to maintain its status as a Special Purpose Entity as required pursuant to the terms hereof; (vii) if Borrowers fail to obtain Lender’s consent to any subordinate financing, mortgage or other voluntary Lien encumbering any Property or the IP other than Permitted Encumbrances and Permitted IP Encumbrances; (viii) the failure to pay maintain insurance coverage under blanket insurance policies (to the extent permitted under this Agreement and elected by Borrowers); (ix) if any Impositionof the restrictions to Transfer set forth in Section 5.2.10 hereof or in any of the other Loan Documents are violated (provided that a Transfer to Lender in connection with a foreclosure, deed in lieu of foreclosure, or other consensual Transfer to Lender shall in no event give rise to any liability under this clause 9.4(ix) and provided further, that any such Transfer to Lender shall not limit or waive any other liability of the Borrowers or Guarantor under the other provisions of this Section 9.4 or the Non-Recourse Guaranty, as applicable); (x) if Lender or any Affiliate thereof shall succeed to the interest of Hotel/Casino Borrower under the Casino Component Lease following a foreclosure, deed in lieu of foreclosure or similar transfer, any actual loss, cost, damage or expense (including, without limitation, reasonable attorneys’ fees and expenses) suffered by Lender or such Affiliate as a result of: (A) any act, omission, neglect or default of Hotel/Casino Borrower under the Casino Component Lease, (B) any claim, defense, counterclaim or offset which the Gaming Operator may have under the Casino Component Lease, (C) any obligation to make any payment to the Gaming Operator under the Casino Component Lease which was required to be made by or on behalf of Hotel/Casino Borrower prior to the time Lender or such Affiliate succeeded to Hotel/Casino Borrower’s interest under the Casino Component Lease, (D) any monies deposited with Hotel/Casino Borrower under the Casino Component Lease, except to the extent such monies are actually received by Lender or such Affiliate, (E) any obligation to complete or permit the construction of any improvements under the Casino Component Lease arising while Hotel/Casino Borrower was the landlord under the Casino Component Lease, and/or (F) any default by Hotel/Casino Borrower under the Casino Component Lease beyond applicable notice and cure periods; (xi) if Hotel/Casino Borrower or any Affiliate thereof shall send a notice to Gaming Operator under Section 6(c) of the Gaming Subordination Agreement which conflicts with any notice theretofore sent by Lender to Gaming Operator under said Section 6(c) of the Gaming Subordination Agreement; provided, however, that the liability under this clause (xi) shall be limited to all fees and costs incurred by Gaming Operator in bringing and pursuing any interpleader action contemplated by said Section 6(c) and only to the extent that Gaming Operator seeks to recover and/or does recover such fees and expenses from Lender; (xii) the hindrance, impediment, obstruction, delay or opposition, by any Borrower or any principal, officer, agent, employee or Affiliate thereof, deposit of Lender’s enforcement of its rights and remedies under the Loan Documents, arising in connection with any Default or Event of Default relating to Borrower’s failure to satisfy any obligations under Section 2.4.2(c) or (d) (any such Default or Event of Default, a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower “Debt Yield Failure”), provided however, in the event that any Borrower asserts defenses or claims that are compulsory in nature at the time of the exercise enforcement of Lender’s rights and remedies with respect to a Debt Yield Failure, and such defenses or claims (x) do not impede or otherwise have the effect of preventing Lender from exercising its rights and remedies under the Loan Documents (including, without limitation, Lender’s right to foreclose under the Security Instrument), and (y) are limited to seeking damages as relief, then Guarantor shall have no liability under this clause (xii); (xiii) the hindrance, impediment, obstruction, delay or opposition, by any Borrower or any principal, officer, agent, employee or Affiliate thereof, of Lender’s enforcement of its rights and remedies under the Loan Documents due to the failure of Borrower to pay to Lender on the Maturity Date, the Outstanding Principal Balance including all accrued and unpaid interest thereon and all other amounts due under the Loan Agreement, the Notes, the Security Instrument and the other Loan Documents in accordance this Agreement; (xiv) if Borrowers or any Affiliate thereof shall fail to provide Assigned Employees for the operation of gaming activities at the Hotel/Casino Property as and to the extent required pursuant to the Employee Lease; (xv) if Gaming Borrower shall fail to provide gaming operation services for the Hotel/Casino Property following an Event of Default, a foreclosure of the Mortgage or a deed in lieu of foreclosure, as and to the extent required pursuant to Section 12.1(e) hereof; (xvi) if Hotel/Casino Borrower, Gaming Borrower, such other Borrower or such Affiliate thereof shall fail to provide liquor management services for the Hotel/Casino Property following an Event of Default, a foreclosure of the Mortgage or a deed in lieu of foreclosure, as and to the extent required (A) as to Hotel/Casino Borrower, pursuant to Sections 5(a) or 5(b) of the Assignment of Liquor Management Agreement, as applicable, and (B) as to Gaming Borrower, any other Borrower or any Affiliate thereof, pursuant to Section 5.1.23(c) hereof; (xvii) intentionally omitted; (xviii) as a result of the imposition of any right or remedy tax provided in NRS §§375.020 and 375.023 with respect to the transaction contemplated under the Settlement Agreement provided, however, that any federal, state or local forfeiture laws resulting liability under this clause (xix) shall terminate upon the payment in the loss full of the lien Debt; (xix) intentionally omitted; or (xx) the occurrence of an Event of Default under Section 8.1(a)(xvii)(A) hereof. Notwithstanding anything to the contrary in this Agreement, the Notes or any of the priority thereofother Loan Documents, against the Collateral; (oA) Lender shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the DebtDebt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrowers in the event of: (i) any Borrower, BREF HR or Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (pii) impair the right filing of an involuntary petition against any Borrower, BREF HR or Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by or on behalf of any Person other than Lender to bring suit for monetary judgment against Borrower with respect to and/or the Servicer, and such petition is not dismissed within ninety (90) days after filing, or any losses resulting from any claimsBorrower, actions or proceedings initiated by Borrower (or any Affiliate of any of them who Controls any Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partnersor BREF HR or Guarantor, tenants in commonsolicit or cause to be solicited petitioning creditors for any involuntary petition against any Borrower, joint tenants BREF HR or Guarantor from any relationship Person (other than that if requested to do so by or on behalf of debtor and creditorLender and/or the Servicer); (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (aiii) any proceedingBorrower, action, petition BREF HR or Guarantor filing under the Bankruptcy Codean answer consenting to, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner BREF HR or Guarantor or (B) filed against BorrowerGuarantor, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of any of them who Controls any Borrower, Owner otherwise consenting to or acquiescing or joining in, any involuntary petition filed against any Borrower, BREF HR or Guarantor, by any other Person (other than if filed by or on behalf of Lender and/or the Servicer) under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iv) any Borrower, BREF HR or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of any of them who Controls any Borrower, Owner consenting to or acquiescing or joining in an application for the appointment of a custodian, receiver, trustee or examiner for any Borrower or any portion of any Property or any portion of the IP (other than any such appointment at the request or petition of Lender and/or the Servicer); or (v) any Borrower, BREF HR or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make voluntarily making an assignment for the benefit of creditors (other than Lender and/or the Servicer), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due. Notwithstanding the foregoing, no Borrower or Guarantor shall be liable under this paragraph, provided that (bx) Borrower the entity that files any voluntary petition or takes any other action under clauses (i)-(v) is not Controlled by Guarantor or any Affiliate contests thereof and (y) Guarantor has not colluded, consented to, acquiesced or joined in bad faith or with the Person that files any such petition or takes any such action. For purposes of this Agreement and each of the other Loan Documents, neither the negative capital account of any Constituent Member in any material way interferes with Borrower nor any obligation of any Constituent Member in bad faith, directly any Borrower to restore a negative capital account or indirectly to contribute or loan capital to any Borrower or to any other Constituent Member in any Borrower shall at any time be deemed to be the property or an asset of such Borrower (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower other Constituent Member) and neither Lender nor any of its successors or assigns shall have no liability under this clause (b)) any right to collect, enforce or (c) Borrower (i) fails proceed against any Constituent Member with respect to cause Owner any such negative capital account or obligation to deliver notice of default under any Ground Lease to Lender restore, contribute or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateralloan.

Exculpation. Notwithstanding anything in this Agreement Upon the Effective Time, to the extent permitted by law, each Party does for itself and each of its Related Parties that it has the power to bind (by such Party’s acts or signature) or over which such Party directly or indirectly exercises control acting in any and all capacities to which they may be entitled, hereby exculpate one another and each other Loan Document to the contrary, except as otherwise set forth in this Section 8.01 to the contrary, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any each of their respective partnersRelated Parties from, (b) if Borrower and agree that each shall have and incur no liability to, nor be subject to any right or any of its direct action by one another for acts, omissions, events or indirect owners is a trust, its occurrences prior to the Release Date directly or their beneficiaries indirectly relating to or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement or any arising out of the other Loan Documents by any action or proceedingNotes, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower the indentures relating to the Notes or the Partners, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Exchange Offers; provided, however, that nothing in this Section 3 shall exculpate the Company from liability for: (A) any judgment in obligation of the Company and its subsidiaries to indemnify or to advance fees or reimburse any such action costs to their current and former directors or proceeding shall be enforceable against Borrower officers under its organizational documents, by-laws, employee-indemnification policies, state law, or any other agreement; (B) any right of any Party under the Credit Agreement and the Partners only to the extent of any such Default Collateral. The provisions of this Section shall not, however, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Receivables Agreement; (cC) affect any right of any party to receive the validity or enforceability exchange consideration as set forth in the final prospectus relating to the Exchange Offers and related transactions thereto and any right such party to make a Claim if the Company fails to implement the changes to its board of directors described in the section entitled “Summary of the Note, this Agreement, Restructuring Plan” of the Prospectus; (D) any failure by the Company to seek the Shareholder Approval or the Merger in each case in the manner described in the Prospectus or any violation by the Company of the other Loan DocumentsSecurities Act of 1933, as amended or impair the right Securities Exchange Act of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower1934, or any Affiliate of Borrower as amended, in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall Exchange Offer which cannot modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to samebe released hereby; (fE) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower any claims arising under, through or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect otherwise relating to any obligation set forth Notes that remain outstanding after the Effective Time, as such obligations may be amended by any supplemental indentures entered into in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of connection with the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written noticeExchange Offer; or (sF) impair any agreement or transaction entered into after the right of Lender to bring suit for a monetary judgment Effective Time, except for, in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty case of clauses (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaimC), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause D) and (b)F) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitationabove, any right, title and interest of Borrower in and to the CollateralMerger Claims.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document to the contrary, except as otherwise set forth in this Section 8.01 to the contrary, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower The Administrative Agent shall not have any duties or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described obligations except those expressly set forth herein and in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partners, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such Default Collateral. The provisions of this Section shall not, however, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the foregoing provisions generality of the foregoing, the Administrative Agent: (i) shall not modifybe subject to any fiduciary or other implied duties, diminish regardless of whether an Event of Default or discharge Prepayment Event has occurred and is continuing; (ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of Borrower doubt any action that may be in violation of the automatic stay under any debtor relief law or Guarantor that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any debtor relief law; and (iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, 5160 WEIL:\98779117\5\64945.0060WEIL:\98789202\5\64945.0060 2216363.01 NYCSR03A - MSW any information relating to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, that is communicated to or obtained by the right to bring suit for a monetary judgement to proceed against Person serving as the Administrative Agent or any Guarantor, to the extent of Guarantor’s liability under its Affiliates in any guaranty delivered by Guarantor, and the foregoing provisions capacity. (b) The Administrative Agent shall not modify, diminish be liable for any action taken or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered taken by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; it (i) impair with the right of Lender to enforce consent or at the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower request of the Debt Required Lenders (or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent such other number or in any way hinder Lender from exercisingpercentage of the Lenders as shall be necessary, or constitute a defenseas the Administrative Agent shall believe in good faith shall be necessary, or counterclaim, or other basis for relief in respect of under the exercise of, any other remedy against any or all of the collateral securing the Note circumstances as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, Sections 11.1 and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof7.3), or realizing upon (ii) in the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent absence of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the its own gross negligence or willful misconduct as determined by a court of Borrower or, competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Event of Default or Prepayment Event unless and until notice describing such Event of Default or Prepayment Event is given to the extent that there is sufficient cash flowAdministrative Agent in writing by the Borrower or a Lender. (c) The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, failure to pay any Imposition, warranty or representation made in or in lieu thereofconnection with this Agreement or any other Loan Document, deposit a sum equal to (ii) the contents of any Impositions into certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the Basic Carrying Costs Sub-Account ; (n) impair the right performance or observance of Lender to bring a suit for a monetary judgment against Borrower in the event any of the exercise covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any right Default, (iv) the validity, enforceability, effectiveness or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien genuineness of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) other Loan Document or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt agreement, instrument or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCCdocument, or changes its name, its jurisdiction (v) the satisfaction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information any condition set forth in any UCC Financing Statements relating Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the CollateralAdministrative Agent.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document to the contrary, except as otherwise set forth in this Section 8.01 to the contrary, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement or any of the other Loan Documents by The Administrative Agent shall not be liable for any action taken or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partners, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon not taken by it (i) Borrower’s interest with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the Collateral, circumstances as provided in Sections 11.1 and 9.2) or (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such Default Collateral. The provisions of this Section shall not, however, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any absence of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the own gross negligence or willful misconduct as determined by a court of Borrower or, competent jurisdiction by final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the extent that there is sufficient cash flowAdministrative Agent by the Borrower or a Lender. (b) The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, failure to pay any Imposition, warranty or representation made in or in lieu connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the existence, value, adequacy, enforceability, sufficiency, collectability or title of any Collateral or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. (c) In no event shall the Administrative Agent be liable for any indirect, special, punitive or consequential damages (including lost profits), even if advised of the possibility thereof. (d) Without limiting the foregoing, deposit a sum equal to the Administrative Agent shall not be responsible or have any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit liability for a monetary judgment against Borrower any failure or delay in the event performance of its obligations under this Agreement or any other Loan Document arising out of or caused by, directly or indirectly, circumstances beyond their control, including acts of God, natural disasters, epidemics, pandemics, acts of war or terrorism, civil or military disturbances, labor disputes, failures or disruptions of utilities, communications or computer (hardware or software) services or other similar events. (e) The Administrative Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right right, power, authority or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, discretion if it has onegrounds for believing the repayment of such funds or adequate indemnity against, organizational identification numberor security for, without first giving Lender thirty such risk or liability is not reasonably assured to it. (30f) days prior written notice; The Administrative Agent shall not be liable for any error of judgment, or (s) impair the right of Lender to bring suit for a monetary judgment any act done or step taken or omitted by it in the event that Borrower changes its name good faith or otherwise does for any mistake in act or law, or for anything which would make it may do or refrain from doing in connection herewith, in each case except for its own gross negligence or willful misconduct. (g) The Administrative Agent shall be entitled to request instructions from the information set forth in any UCC Financing Statements relating Required Lenders (or such other Lenders as may be specified herein) as to the Collateral materially misleading without giving Lender thirty exercise of any rights or powers, and may refrain from taking any action unless and until such instructions are received. In the absence of such instructions, the Administrative Agent may act or refrain from acting in its reasonable discretion. (30h) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter Notwithstanding anything in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motionto the contrary, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower the Administrative Agent shall have no liability under this clause (b)) responsibility for the preparation, filing or (c) Borrower (i) fails to cause Owner to deliver notice recording of default under any Ground Lease to Lender instrument, document or financing statement or for the perfection or maintenance of any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and security interest of Borrower in and to the Collateralcreated hereunder.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document (a) Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the Partnersforegoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (a1) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Security Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, the Noteindemnities set forth in Article 12 hereof, this Agreement, in the Guaranty and in the Environmental Indemnity) made in connection with the Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender thereunder (including, without limitation, Lender’s right to seek a personal judgment enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the Guarantor to effect of the extent and for the obligations guaranteed in the Guarantyexculpatory provisions of this Article 13); (d4) impair the right of Lender to obtain the appointment of a receiver; (e5) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate the assignment of Borrower leases and rents contained in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to sameSecurity Instrument; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i6) impair the right of Lender to enforce the provisions of Sections 2.02(gSection 4.12(e) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or ; (7) constitute a prohibition against Lender to bring suit for seek a monetary deficiency judgment against Borrower with respect in order to fully realize the security granted by the Security Instrument or to commence any obligation set forth other appropriate action or proceeding in said Sectionsorder for Lender to exercise its remedies against the Property; or (j) prevent or in any way hinder Lender from exercising, or 8) constitute a defense, or counterclaim, or other basis for relief in respect waiver of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge enforce the liability and obligation of Borrower Borrower, by money judgment or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ forotherwise, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the Default Collateral; following: (mi) impair fraud or intentional misrepresentation or any failure to disclose a material fact by Borrower, Guarantor, Sponsor, or any Borrower Party in connection with the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from Loan; (ii) the gross negligence or willful misconduct of Borrower, any SPE Component Entity, Guarantor, Sponsor, or any Borrower orParty or the commission of a criminal act by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party which results in a forfeiture of the Property; (iii) material physical waste to the Property caused by the intentional acts or intentional omissions of Borrower, any SPE Component Entity, Guarantor, Sponsor, or any Borrower Party (including, without limitation, any arson or abandonment of the Property) and/or the removal or disposal of any portion of the Property after an Event of Default by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party; (iv) the misapplication, misappropriation or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance; (v) failure to pay (or cause to be paid) any Taxes or Other Charges, charges for labor or materials or any other charges that can create liens on any portion of the Property to the extent that there the revenue from the Property is sufficient cash flowto pay such amounts (other than (x) amounts deposited with Lender as Tax and Insurance Reserve Funds for Taxes or Other Charges where Lender elects not to apply such funds toward payment of such Taxes or Other Charges owed or (y) Taxes or Other Charges owed that are contested strictly in accordance with the terms of the Loan Documents); (vi) the breach of any material representation, warranty, covenant or indemnification provision in the Environmental Indemnity, this Agreement or in the Security Instrument concerning Environmental Laws and Hazardous Substances and any indemnification of Lender with respect thereto in either document; (vii) any fees or commissions paid by Borrower after the occurrence of an Event of Default to Guarantor, Sponsor and/or any Borrower Party in violation of the terms of the Note, this Agreement, the Security Instrument or the other Loan Documents; (viii) Borrower’s breach of, or failure to comply with, the representations, warranties and covenants contained in Article 15 of this Agreement and/or the provisions of Sections 4.23, 12.2 and 12.3 hereof; (ix) failure to maintain insurance as required by this Agreement to the extent that the revenue from the Property is sufficient to pay the Insurance Premiums relating thereto (other than the failure to pay amounts deposited with Lender as Tax and Insurance Funds for Insurance Premiums to be paid to maintain such insurance where Lender elects not to apply such funds toward payment of such Insurance Premiums); (x) Borrower fails to permit on-site inspections of the Property, fails to provide the Required Financial Items or fails to appoint a new property manager upon the request of Lender, each as required by, and in accordance with the terms and provisions of, this Agreement, the Assignment of Management Agreement and the other Loan Documents or Borrower appoints a new property manager or replaces the property manager other than in accordance with the terms of this Agreement, the Assignment of Management Agreement and the other Loan Documents; (xi) any Impositionlitigation or other legal proceeding related to the Debt filed in bad faith by Borrower, any SPE Component Entity, Guarantor, Sponsor or in lieu thereofany Borrower Party that delays, deposit a sum equal to any Impositions into opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the Basic Carrying Costs Sub-Account ; (n) impair the right efforts of Lender to bring a suit for a monetary judgment against exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents; (xii) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by Borrower, Guarantor, Sponsor, or any Borrower Party; (xiii) Additional Interest not being paid; (xiv) any deficiency in Net Proceeds in the event of a Casualty at the exercise of any right or remedy under any federalProperty equal to the positive difference, state or local forfeiture laws resulting in if any, between (x) the loss outstanding amount of the lien Debt and (y) the Net Proceeds, but only to the extent such deficiency is caused by the amount of Net Proceeds delivered to the Borrower pursuant to the Condominium Documents; and/or (xv) failure to obtain a PCO and/or maintain a TCO for the Property (including, without limitation, for the Starbucks Space) in accordance with the provisions of this Agreement. Notwithstanding anything to the contrary in this Agreement, the Note or any of the priority thereofLoan Documents, against the Collateral; (oA) Lender shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; Debt owing to Lender in accordance with the Loan Documents, and (pB) impair the right of Lender Debt shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event that: (i) any representation, warranty or covenant contained in Article 5 or Article 6 or Section 4.14 hereof is violated or breached, provided, however, that any such breach or violation with respect to Article 5 shall not result in recourse liability hereunder unless such breach was material and, within fifteen (15) days of a Transfer in violation of the provisions of this Agreementnotice from Lender, Borrower fails to cure such breach; (rii) impair the right of Lender to bring suit for Borrower or any SPE Component Entity files a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, voluntary petition or filing under the Bankruptcy CodeCode or any other Creditors’ Rights Laws; (iii) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvencySPE Component Entity files, or joins in the arrangement filing of, an involuntary petition against Borrower or adjustment any SPE Component Entity under the Bankruptcy Code or any other Creditors’ Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPE Component Entity from any Person; (iv) Borrower or any SPE Component Entity files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Creditors’ Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (v) any Affiliate, officer, director, or representative which Controls Borrower or any SPE Component Entity consents to or acquiesces in or joins in an application for the appointment of debtsa custodian, shall be (A) filed by receiver, trustee, or examiner for Borrower, Owner any SPE Component Entity or Guarantor or any portion of the Property; (Bvi) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make SPE Component Entity makes an assignment for the benefit of creditors creditors, or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (bvii) there is substantive consolidation of Borrower or any SPE Component Entity (or any Restricted Party) with any other Person in connection with any federal or state bankruptcy proceeding involving the Guarantor or any of its Affiliates; (viii) Borrower or any Affiliate SPE Component Entity (or any Restricted Party) contests in bad faith or in opposes any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised motion made by Lender upon to obtain relief from the occurrence automatic stay or seeks to reinstate the automatic stay in the event of an Event any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates; (ix) Borrower’s failure to deposit any springing Reserve Funds deposits pursuant to the terms of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) Agreement; or (cx) in the event Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated satisfy the obligations set forth in writing by Lender or (iiSection 3.38(c) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateralhereof.

Exculpation. Notwithstanding anything in this Agreement Except as otherwise provided herein or in any the other Loan Document to the contrary, except as otherwise set forth in this Section 8.01 to the contraryDocuments, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained herein or in this Agreement or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty, the PIP Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, Mortgage Borrower, Mezzanine B Borrower, Mezzanine C Borrower or Mezzanine A Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, advisor, employee, agent, shareholder, Affiliate or director of any Persons described in clauses (1) through (5) above (collectively, subject to the Partnersexceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, action for specific performance, performance or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s this Agreement, the Note, the Pledge Agreement and the other Loan Documents, and the interest in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) Collateral and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners Borrower, only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender. Lender, by accepting this Agreement, the Note, the Pledge Agreement and the other Loan Documents, agrees that it shall not, except as otherwise provided in this Section 15.1, ▇▇▇ for, seek or demand any deficiency judgment against any Exculpated Party in any such Default Collateralaction or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Pledge Agreement or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (ai) impair constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the validity of Note, the Debt evidenced by the Note or in any way affect or impair the lien of this Pledge Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (bii) impair the right of Lender to name Borrower or Additional Pledgor as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Article 14 of this Agreement and the Environmental Indemnity), guaranty, master ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇ lease or similar instrument made in connection with this Agreement, the Note, this Agreement, or any of the Pledge Agreement and the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud the provisions contained in the Pledge Agreement; or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (hvi) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment or other judgment on the Note against Borrower solely for the purpose of foreclosing the Premises or if necessary to obtain any part thereof, or realizing upon the Default CollateralNet Liquidation Proceeds After Debt Service to which Lender would otherwise be entitled under this Agreement; provided, however, that any Lender shall only enforce such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the CollateralInsurance Proceeds and/or Awards.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document (a) Subject to the contrary, except as otherwise qualifications set forth in this Section 8.01 to the contrary9.3, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) Operating Lessee to perform and observe the obligations contained in the Note, this Agreement Agreement, the Mortgage or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the PartnersOperating Lessee, except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the IP Collateral, (ii) subject to the rights of Mortgage LenderRents, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners or Operating Lessee only to the extent of Borrower’s or Operating Lessee’s interest in the Property, in the Rents, in the IP Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (ai) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (bii) impair the right of Lender to name Borrower or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this the Mortgage or the IP Security Agreement; (ciii) affect the validity or enforceability of or any guaranty made in connection with the Note, this Agreement, Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guarantythereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the enforcement of any assignment of leases contained in the Mortgage; or (vi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or Operating Lessee in order to fully realize the security granted by the Mortgage or the IP Security Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property or IP Collateral; (b) Nothing contained herein shall in any manner or way release, affect or impair any right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate enforce the liability and obligation of Borrower or Operating Lessee, by money judgment or otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation to the extent actually incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or incurred in connection with the following on the part of Guarantor, Borrower, Operating Lessee or any Affiliated Manager until such time, if any, as a Transfer resulting from, the exercise of Lender’s rights under the Loan Documents, any Mezzanine Lender’s rights under any Mezzanine Loan Documents or the consummation of any remedial or enforcement action by the Lender or any holder of any Mezzanine Loan of the collateral for the Loan or any Mezzanine Loan, including, without limitation, any foreclosure, deed-in-lieu or assignment in lieu of foreclosure and the exercise of any rights of Lender or Mezzanine Lender under the Mortgage, the IP Security Agreement or any Pledge Agreement, including, without limitation, any right to vote any pledged securities or any right to replace officers and directors of any Person (collectively, a “Foreclosure”), that in each case results in Borrower, any Mezzanine Borrower, Operating Lessee or any Affiliated Manager, as applicable not being under the Control of Guarantor: (i) fraud or intentional misrepresentation by Borrower or Operating Lessee in connection with the Loan; (ii) willful misconduct of Borrower, Operating Lessee or Guarantor that results in physical damage or waste to the Property; (iii) the removal or disposal, by, or on behalf of Borrower, Operating Lessee or Guarantor, of any portion of the Property or IP Collateral during the continuance of an Event of Default; (iv) the misappropriation or conversion by Borrower or Operating Lessee of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default, or (D) any Rents paid more than one month in advance; (v) a material breach of any representation, warranty or covenant set forth in Section 4.1.30(e) or Section 5.1.28 hereof, including without limitation, if Borrower incurs Indebtedness other than Permitted Debt in violation of Section 5.1.28(b); (vi) intentionally omitted; and (vii) if Borrower fails to obtain Lender’s prior written consent to any Sale, Pledge or Transfer of the Property or the IP Collateral or a Transfer of the ownership interests in Borrower, in each case as required by Section 5.2.10 hereof, and in each case, excluding Permitted Transfers, Permitted Encumbrances and any other Lien expressly permitted under the Loan Documents. For the avoidance of doubt, a Transfer resulting from a Foreclosure shall not be a Transfer in violation of Section 5.2.10 hereof. (c) Notwithstanding anything to the contrary in this Agreement, the Note or any of the other Loan Documents, and the foregoing provisions (I) Lender shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt; Debt owing to Lender in accordance with the Loan Documents, and (pII) impair the right of Lender Debt shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of: (A) Borrower, Operating Lessee or Operating Lessee GP filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Operating Lessee or Operating Lessee GP under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower, Operating Lessee or Operating Lessee GP colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Lessee or Operating Lessee GP from any Person; (C) Borrower, Operating Lessee or Operating Lessee GP filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law or (D) Borrower, Operating Lessee or Operating Lessee GP consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Operating Lessee or Operating Lessee GP or any portion of the Property or the IP Collateral. (d) From and after a Permitted Assumption, the Debt shall be fully recourse to Borrower and Guarantor (or any substitute guarantor pursuant to Section 5.2.10(e)(xi)) hereof for Borrower’s failure to obtain Lender’s prior written consent to any Sale or Pledge of the IP Collateral or the Property or a Transfer of the ownership interests in any Restricted Party as required by Section 5.2.10 hereof and excluding Permitted Transfers, Permitted Encumbrances and any other Lien expressly permitted under the Loan Documents. For the avoidance of doubt, a Transfer resulting from a Foreclosure shall not be a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateral.5.2.10 hereof;

Exculpation. Notwithstanding anything Effective as of the Effective Date, the Exculpated Parties shall neither have nor incur any liability to any Person or Entity for any claims or Causes of Action or for any act taken or omitted to be taken on or after the Petition Date and prior to or on the Effective Date in connection with, or related to, the administration of the Chapter 11 Cases, commencement of the Chapter 11 Cases, pursuit of Confirmation and consummation of this Agreement Plan, making Distributions, the Disclosure Statement, the Sale Process, the Sale Order, or the solicitation of votes for, or Confirmation of, this Plan; the occurrence of the Effective Date; the administration of this Plan or the property to be distributed under this Plan; the issuance of securities under or in any other Loan Document to connection with this Plan; the contrarypurchase, except as otherwise set forth in this Section 8.01 to the contrary, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employeessale, or (d) if Borrower rescission of the purchase or sale of any asset or security of its direct the Debtors; or indirect owners is a limited liability company, any the transactions or documentation in furtherance of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement or any of the other Loan Documents by any action or proceedingforegoing, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partners, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject including but not limited to the rights Restructuring Support Agreement; or any other postpetition act taken or omitted to be taken in connection with or in contemplation of Mortgage Lenderthe restructuring of the Debtors, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance approval of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Disclosure Statement or Confirmation or consummation of this Plan; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such Default Collateral. The foregoing provisions of this Section exculpation shall notnot operate to waive or release: (i) any Causes of Action arising from willful misconduct, howeveractual fraud, (a) impair the validity or gross negligence of such applicable Exculpated Party as determined by Final Order of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement Bankruptcy Court or any other court of competent jurisdiction; and/or (ii) the other Loan Documents rights of any Person or the right of Lender Entity to enforce this Agreement during Plan and the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action contracts, instruments, releases, indentures, and other agreements and documents delivered under or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note Plan or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender assumed pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower Plan or Final Order of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default CollateralBankruptcy Court; provided, howeverfurther, that any such deficiency judgment referred to in this clause (l) each Exculpated Party shall be enforceable against Borrower and Guarantor only entitled to rely upon the extent advice of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Impositioncounsel concerning its respective duties pursuant to, or in lieu thereofconnection with, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event above referenced documents, actions or inactions. The foregoing exculpation shall be effective as of the exercise of any right Effective Date without further notice to or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision order of the Bankruptcy Code Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Person. Notwithstanding the foregoing, nothing in this Article IX.D shall or shall be deemed to file a claim for prohibit the full amount of Debtors or the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting Reorganized Debtors from asserting and enforcing any claims, actions obligations, suits, judgments, demands, debts, rights, Causes of Action or proceedings initiated by Borrower (or liabilities they may have against any Affiliate of Borrower) alleging Person that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event based upon an alleged breach of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business confidentiality or its books and records relating non-compete obligation owed to the Collateral which are governed by Debtors or the UCCReorganized Debtors, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit in each case unless otherwise expressly provided for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereofthis Plan. The provisions of this Section shall Exculpation will be inapplicable to Borrower if (a) any proceedingin addition to, actionand not in limitation of, petition or filing under the Bankruptcy Codeall other releases, or any similar state or federal law now or hereafter in effect relating to bankruptcyindemnities, reorganization or insolvencyexculpations, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender applicable law or (ii) fails to prevent Owner rules protecting such Exculpated Parties from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateralliability.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct its constituent members, partners, shareholders, directors, employees or indirect interest in Borrower (a) if Borrower agents or any of its direct or indirect owners is a partnership, its or their the direct or indirect constituent partners or any of their respective members, partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principalsemployees or agents thereof (collectively, officers or employees, or (dthe “Borrower Parties”) if Borrower or any of its direct or indirect owners is a limited liability companyother Person, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement Agreement, the Note or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against any of the Borrower Parties or the Partnersany other Person, except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s interest in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to this Agreement and the other Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Borrower and the Partners Parties only to the extent of their interest in the Property, the Rents and in any other collateral given to Lender, and Lender, by accepting this Agreement, the Note and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against any of the Borrower Parties or any other Person in any such Default Collateralaction or proceeding under or by reason of or in connection with this Agreement, the Note or any of the other Loan Documents. The provisions of this Section paragraph shall not, however, (ai) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by this Agreement, the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (bii) impair the right of Lender to name any of the Borrower Parties, as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Mortgage; (ciii) affect the validity or enforceability of any guaranty made in connection with the Note, this Agreement, Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guarantythereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) impair the enforcement of the Assignment of Leases and Rents; or (vi) constitute a waiver of the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate enforce the liability and obligation of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall (but not modify, diminish or discharge the liability against any members of Borrower or (other than Guarantor to the extent of Guarantor’s liability under provided in the Non-Recourse Guaranty delivered by Guarantor with respect to same; (fand/or the Partial Payment Guaranty) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or their direct or indirect constituent members or partners or any of its Affiliates includingother Person), without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantorby money judgment or otherwise, to the extent of Guarantor’s liability under any guaranty delivered loss, damage, cost, expense, liability, claim or other obligation (but excluding any punitive, consequential or speculative damages) incurred by Guarantor, Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the foregoing provisions shall not modify, diminish following: (a) fraud or discharge the liability of intentional misrepresentation by Borrower or Guarantor in connection with respect the Loan; (b) intentional physical waste of the Property (including, but not limited to, waste due to samegross negligence) by Borrower or any affiliate thereof; provided, however, such physical waste shall exclude wear and tear to the Property that occurs in the ordinary course of business of the Property by Borrower or any affiliate thereof; (gc) impair the right material breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in this Agreement concerning Environmental Laws, Hazardous Substances and Asbestos; (d) the removal or disposal by Borrower or any affiliate thereof of any portion of the Property after an Event of Default has occurred and while it is continuing, unless such portion of the Property is replaced by an item of equal or greater value as determined by Lender in its reasonable discretion; (e) the misapplication or conversion by Borrower or any affiliate thereof of (i) any insurance proceeds paid by reason of any loss, damage or destruction to bring suit for the Property, (ii) any awards or other amounts received in connection with the condemnation of all or a monetary judgment against Borrower with respect to Borrower’s portion of the Property, (iii) any Rents following an Event of Default or Owner’s misappropriation of tenant security deposits or Rent collected (iv) any Rents paid more than one (1) month in advance, and ; (f) failure to pay charges for labor or materials or taxes or other charges that can create liens superior to the foregoing provisions shall not modify, diminish lien of the Mortgage on any portion of the Property unless such taxes or discharge the liability of other charges are being contested in accordance herewith or such taxes or charges have been delivered to Lender in accordance with Section 3.3 hereof or Borrower has complied with Section 5.2 hereof; and (g) any security deposits collected by Borrower or Guarantor any affiliate thereof with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to security deposits were applied in this clause (l) shall be enforceable against Borrower accordance with the terms and Guarantor only to the extent conditions of any of the Default Collateral; (m) impair Leases prior to the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or occurrence of the Collateral Event of Default that gave rise to such foreclosure or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or action in lieu thereof, deposit a sum equal . Notwithstanding anything to the contrary in any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; Loan Documents (oi) Lender shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; Debt owing to Lender in accordance with the Loan Documents, and (pii) impair the right of Lender Debt shall become fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (but not its members (other than Guarantor solely to the extent provided in the Non-Recourse Guaranty and/or the Partial Payment Guaranty) or other direct or indirect constituent members or partners or any Affiliate of Borrowerother Person) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event that: (A) the first full Monthly Debt Service Payment Amount (as defined in the Note) under the Note is not paid when due; (B) other than in connection with a default under subsection (x) of the definition of Special Purpose Bankruptcy Remote Entity set forth in Schedule 5 hereto, Borrower fails to maintain its status as a Transfer Special Purpose Bankruptcy Remote Entity in violation of accordance with the provisions of this AgreementAgreement and such failure results in the substantive consolidation of Borrower with another Person; (rC) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating except as otherwise permitted pursuant to the Collateral which are governed by Loan Documents, Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering the UCCProperty; (D) except as otherwise permitted pursuant to the Loan Documents, Borrower fails to obtain Lender’s prior written consent to any assignment, transfer, or changes its name, its jurisdiction conveyance of organization, type of organization the Property or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written noticeany interest therein as and to the extent required by this Agreement or the Mortgage; or (sE) impair the right of Lender (1) if any petition for bankruptcy, reorganization or arrangement pursuant to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Codefederal bankruptcy law, or any similar federal or state law, shall be filed by Borrower or federal law now Guarantor, or hereafter in effect relating to (2) if Borrower or Guarantor files an answer consenting to, or otherwise joining in, any involuntary petition for bankruptcy, reorganization or insolvencyarrangement pursuant to federal bankruptcy law, or the arrangement any similar federal or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) state law filed against Borrowerit by any other Person, Owner or Guarantor and consented is found pursuant to a final, unappealable order of a court of competent jurisdiction to have solicited or acquiesced in by Borrower caused to be solicited creditors to file any involuntary petition for bankruptcy, reorganization or Owner arrangement pursuant to federal bankruptcy law, or any Affiliate of Borrower, Owner similar federal or state law against Borrower or Guarantor, or (3) if Borrower, Owner Borrower or Guarantor are found, pursuant to a final unappealable order of a court of competent jurisdiction, to have been in collusion with creditors that initiate a bankruptcy action or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) against Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the CollateralGuarantor.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Mortgage or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower Borrower, Guarantor or any direct or indirect principal, director, officer, employee, beneficiary, shareholder, partner, member, Constituent Member, trustee, agent or affiliate of Borrower, Guarantor or any person owning, directly or indirectly, any legal or beneficial interest in Borrower, or Guarantor or any successors or assigns of any of the Partnersforegoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section section shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Mortgage; (c) affect the validity or enforceability of any guaranty made in connection with the Note, this Agreement, Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guarantythereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate the Assignment of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to sameLeases; (f) impair the right of constitute a prohibition against Lender to bring suit seek a deficiency judgment against Borrower in order to fully realize the security granted the Mortgage or to commence any other appropriate action or proceeding in order for a monetary judgment Lender to obtain exercise its remedies against the Recourse Distributions received by Borrower Property; or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right constitute a waiver of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions liability and obligation of Sections 2.02(g) and 4.01Borrower, inclusive of this Agreementby money judgment or otherwise, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred but excluding any consequential damages) arising out of or in connection with the Default Collateral; following: (mi) impair fraud or intentional misrepresentation by Borrower or Hotel Operator in connection with the ability Loan; (ii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, thereto in either document; (iii) to the extent that there is sufficient cash flowproceeds received by Borrower or Hotel Operator, the misappropriation by Borrower or Hotel Operator in violation of an express provision in the Loan Documents of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents received following an Event of Default, or collected more than thirty (30) days in advance, or (D) any security deposits; (iv) failure to pay any Imposition, or in lieu thereof, deposit a sum equal obtain Lender’s prior written consent required under this Agreement to any Impositions into subordinate financing or other voluntary lien encumbering the Basic Carrying Costs Sub-Account Property; and (nv) impair the right material failure of Lender Borrower to bring maintain its status as a suit for single purpose entity in compliance with Section 4.1.30 of this Agreement or the material failure of Hotel Operator to maintain its status as a monetary judgment against Borrower single purpose entity in the event compliance with Section 19 of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting Subordination Agreement. Notwithstanding anything to the contrary in the loss of the lien of this Agreement, the Note or any of the priority thereofLoan Documents, against the Collateral; (oA) Lender shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt; Debt owing to Lender in accordance with the Loan Documents, and (pB) impair the right of Lender Debt shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a that: (i) Borrower fails to obtain Lender’s prior written consent to any Transfer in violation of the provisions of Property as required by this Agreement; (rii) impair the right of Lender to bring suit for Borrower or Hotel Operator files a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, voluntary petition or filing under the Bankruptcy CodeCode or any other Federal or state bankruptcy or insolvency law; (iii) an Affiliate, officer, director, or any similar state representative which controls, directly or federal law now indirectly, Borrower or hereafter in effect relating to bankruptcy, reorganization or insolvencyHotel Operator files, or joins in the arrangement filing of, an involuntary collusive petition against Borrower or adjustment Hotel Operator under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (iv) Borrower or Hotel Operator solicits or causes to be solicited petitioning creditors for any involuntary collusive petition from any Person; (v) any Affiliate, officer, director, or representative which controls Borrower or Hotel Operator joins in voluntary or involuntary collusive application for the appointment of debtsa custodian, shall be (A) filed by receiver, trustee, or examiner for Borrower, Owner Hotel Operator or Guarantor or any portion of the Property (Bvi) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner Hotel Operator makes a voluntary or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an involuntary collusive assignment for the benefit of creditors creditors, or (b) Borrower or any Affiliate contests admits, in bad faith writing or in any material way interferes with legal proceeding, its insolvency or inability to pay its debts as they become due. Notwithstanding anything to the contrary in bad faiththis Agreement or any other Loan Document, and except for each Guarantor’s obligations under the Guaranty, no present or future Constituent Member in Borrower, nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, member, partner, principal, participant or agent of or in Borrower or of or in any person or entity that is or becomes a Constituent Member in Borrower, shall have any personal liability, directly or indirectly (collectivelyindirectly, a “Contest”) under or in connection with this Agreement or any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any actionDocuments, or otherwise any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, and Lender on behalf of itself and its successors and assigns, hereby waives any and all such personal liability. In addition, Lender, for itself and its successors and assigns, acknowledges and agrees that neither Borrower, nor any Constituent Member, nor any other party, is assuming any personal liability, directly or indirectly, under or in bad faith connection with any agreement, lease, instrument, claim or right constituting a part of the Property or to which the Property is now or hereafter subject. For purposes of this Agreement and each of the other Loan Documents, neither the negative capital account of any Constituent Member in Borrower nor any obligation of any Constituent Member in Borrower to restore a negative capital account or to contribute or loan capital to Borrower or to any other Constituent Member in Borrower shall at any time be deemed to be the property or an asset of Borrower (provided that if or any such Person obtains a non-appealable order successfully asserting a Contest, Borrower other Constituent Member) and neither Lender nor any of its successors or assigns shall have no liability under this clause (b)) any right to collect, enforce or (c) Borrower (i) fails proceed against with respect to cause Owner any such negative capital account or obligation to deliver notice of default under any Ground Lease to Lender restore, contribute or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateralloan.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document (a) Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Mortgage or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or any principal, director, officer, director, employee, advisor, beneficiary, shareholder, partner, manager, member, trustee, agent, or Affiliate of Borrower (but specifically excluding Guarantor under the PartnersGuaranty and the Environmental Indemnity) or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not s▇▇ for, seek or demand any deficiency judgment against Borrower, Guarantor (but specifically excluding Guarantor under the Guaranty and the Environmental Indemnity) or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Mortgage; (c) affect the validity or enforceability of or any guaranty or indemnity made in connection with the Note, this Agreement, Loan (including the Guaranty and the Environmental Indemnity) or any of the other Loan Documents, or impair the right rights and remedies of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guarantythereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right enforcement of any assignment of leases contained in the Mortgage; or (f) constitute a prohibition against Lender to bring suit for seek a monetary deficiency judgment against Borrower with respect in order to fraud or material misrepresentation fully realize the security granted by the Mortgage (if required by applicable law and provided such deficiency judgment is not enforced against Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower Exculpated Parties or Guarantor to the extent of Guarantor’s liability (but specifically excluding Guarantor under the Guaranty delivered by Guarantor with respect and the Environmental Indemnity) personally) or to same; commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property. 107 (fb) Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to bring suit recover, and Borrower shall be fully and personally liable and subject to legal action, for any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable attorneys’ fees and court costs) actually incurred or suffered by Lender arising out of or in connection with the following (provided that in no event shall Borrower be liable for any actions taken by, or inaction of, a monetary judgment receiver, regardless of whether such action or inaction is undertaken by a receiver pursuant to obtain any authority it may have to control the Recourse Distributions received actions of Borrower, in each case to the extent the acts or omissions giving rise to such right of recovery occurred prior to (1) a Transfer resulting from, the exercise of Lender’s rights under the Loan Documents or (2) the consummation of any remedial or enforcement action by Borrower the Lender or any of its Affiliates the collateral for the Loan, including, without limitation, any foreclosure, deed-in-lieu or assignment in lieu of foreclosure and including the right to bring suit for a monetary judgement to proceed against exercise of any Guarantorrights of Lender under the Mortgage, to that in each case results in any such entity or the extent Property not being under the Control of Guarantor’s liability under Guarantor (any guaranty delivered by Guarantor, and of the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect pursuant to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one clause (1) month in advanceor (2), and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; a “Transfer Event”)): (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01fraud or intentional misrepresentation by Borrower, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower Principal or Guarantor to in connection with the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; Loan; (lii) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower orBorrower, Principal or Guarantor; (iii) intentional material physical waste of the Property by Borrower, Principal or Guarantor (to the extent that there is exists sufficient cash flow, failure flow from the Property that is made available to pay Borrower); (iv) the removal or disposal of any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event portion of the exercise of any right Property by Borrower, Principal or remedy under any federal, state Guarantor (other than as permitted by the Loan Documents or local forfeiture laws resulting in required by the loss of the lien of this Agreement, Franchise Agreement or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower obsolete Personal Property (or any Affiliate of Borrowerincluding FF&E) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower removed in the event ordinary course of a Transfer in violation of owning and operating the provisions of this Agreement; (rProperty) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon after the occurrence and during the continuance of an Event of Default under unless such property is replaced with property of equal or greater utility or value; (v) the misappropriation, misapplication or conversion by Borrower, Principal or Guarantor of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards received in connection with a Condemnation of all or a portion of the Property, (C) any Rents during the continuance of an Event of Default, (D) any Rents paid more than one month in advance or (E) any amounts disbursed to Borrower from the Reserve Funds; 108 (vi) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of the Property, (except for Permitted Encumbrances or to the extent Borrower is contesting the same in subject to and in compliance with the terms and conditions of Sections 5.1.1, 5.1.2 or 5.1.4 of the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaimAgreement), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any sufficient cash flow is available from the Property to pay such Person obtains costs (and not on reserve with Lender or Manager) and such costs either (A) are contracted for during a non-appealable order successfully asserting a Contest, Borrower shall have period in which no liability under this clause (b)) Event of Default had occurred and was continuing or (cB) Borrower if contracted for during the continuance of an Event of Default, were approved by Lender in writing; (ivii) fails to cause Owner to deliver notice of default under any Ground Lease to Lender security deposits, advance deposits or any other Person designated deposits collected by Borrower, Principal or Guarantor with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in writing by Lender lieu thereof, except to the extent (A) any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof or (iiB) any such deposits were deposited into the Cash Management Account during a Cash Sweep Period; (viii) if Borrower fails to prevent Owner from amending maintain its status as a Special Purpose Entity or modifying comply with any Ground Lease representation, warranty or covenant set forth in Section 4.1.30 or Section 4.1.43 hereof (but expressly excluding any representation regarding future solvency or capital adequacy); (ix) [intentionally omitted]; (x) if (1) without the prior written consent of Lender, the Franchise Agreement is modified in which event Lender shall have recourse against all a manner that requires Lender’s prior written consent under Section 5.2.1(a) hereof or is terminated or cancelled by Borrower; or (2) without the prior written consent of Lender, Borrower accepts a surrender of the assets Franchise Agreement or accepts a modification of the Franchise Agreement which requires Lender’s prior written consent under Section 5.2.1(a) hereof; (xi) any obligation of Lender to indemnify, defend or hold harmless Franchisor, or to pay any damages, costs, fees or expenses pursuant to any term or condition contained in the Comfort Letter; (xii) if Borrower includingfails to permit on-site inspections of the Property or fails to provide financial information, without limitationeach as required by, any rightand in accordance with, title the terms and interest provisions of Borrower in and to the Collateral.this Agreement; or

Exculpation. Notwithstanding anything in this Agreement The Lender has and shall have no liability or in any other Loan Document to the contrary, except as otherwise set forth in this Section 8.01 to the contrary, Lender shall not enforce the liability and obligation of Borrower whatsoever or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in this Agreement or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partners, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such Default Collateral. The provisions of this Section shall not, however, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower howsoever in connection with the construction, completion or management of the Improvements, and has no obligation except to make Loan Advances as provided in this Participation Agreement and the Loan Agreement, the Note or the other Loan Documents, and the foregoing provisions Lender is not obligated to inspect the Improvements; nor is the Lender liable and under no circumstances whatsoever shall not modify, diminish the Lender be or discharge become liable for the liability performance or default of Borrower any contractor or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercisingsubcontractor, or constitute a defensefor any failure to construct, complete, protect or counterclaiminsure the Improvements, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon for the Default Collateral; providedpayment of any cost or expense incurred in connection therewith, however, that or for the performance or non-performance of any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only obligation of the Lessor or the Lessee to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account other person, firm or entity without limitation; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federaland nothing, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, including without limitation, any rightdisbursement of Loan Advances or acceptance of any document or instrument, title shall be construed as a representation or warranty, express or implied, on the Lender's part. Further, the Lessee shall be solely responsible for all aspects of the Lessee's business and interest conduct in connection with the construction, completion and management of Borrower in the Improvements including, but not limited to: (a) The quality and suitability of the Plans and Specifications; (b) Supervision of the work of Construction; (c) The qualifications, financial condition and performance of all architects, engineers, contractors, subcontractors and material suppliers and consultants; (d) Conformance of the work of Construction and the Improvements to the requirements of all Applicable Laws and public and private restrictions and requirements and to the Collateralrequirements of this Participation Agreement; (e) The quality and suitability of all materials and workmanship; and (f) The accuracy of all requests for the disbursement proceeds of the Loans and the proper application of disbursed proceeds of the Loans. The Lender shall have no obligation to supervise, inspect or inform the Lessee, the Lessor or any third party of any aspect of the work or construction of the Improvements or any other matter referred to above. Any inspection or review made by or on behalf of the Lender shall be made for the purpose of determining whether or not the obligations of the Lessee under this Participation Agreement are being properly discharged, and neither the Lessee, the Lessor nor any third party shall be entitled to rely upon any such inspection or review. The Lender owes no duty of care to the Lessee or the Lessor or any third person to protect against or inform the Lessee, the Lessor or any third person of the existence of negligent, faulty, inadequate or defective design or construction of the Improvements.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations Obligations contained in the Note, this Agreement Agreement, the Mortgage or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or deficiency judgment shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent or Affiliate of Borrower or any legal representatives, successors or assigns of any of the Partnersforegoing, except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Gross Revenues or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower's interest in the Property, in the Gross Revenues and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for, seek or demand any money judgment or deficiency judgment against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Mortgage; (c) affect the validity or enforceability of any of the Note, this Agreement, Loan Documents or any guaranty made in connection with the Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guarantythereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate the Assignment of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to sameLeases; (f) impair the right enforcement of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to sameEnvironmental Indemnity; (g) impair the right of constitute a prohibition against Lender to bring suit for seek a monetary deficiency judgment against Borrower with respect in order to Borrower’s fully realize the security granted by the Mortgage or Owner’s misappropriation of tenant security deposits to commence any other appropriate action or Rent collected more than one (1) month proceeding in advance, and order for Lender to exercise its remedies against the foregoing provisions shall not modify, diminish Property; or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right constitute a waiver of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions liability and obligation of Sections 2.02(gBorrower, 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) and 4.01, inclusive arising out of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis connection with the following (all such liability and obligation of Borrower for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note following being referred to herein as provided in the Loan Documents; "Borrower's Recourse Liabilities "): (ki) impair the right of Lender fraud, willful misconduct, misrepresentation or failure to bring suit for disclose a monetary judgment against Borrower with respect to material fact by Borrower, Guarantor, any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability Affiliate of Borrower or Guarantor to Guarantor, or any of their respective agents or representatives in connection with the extent Loan, including by reason of Guarantor’s liability any claim under the Racketeer Influenced and Corrupt Organizations Act (RICO); (ii) the breach in any guaranty delivered by Guarantor material respect of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and/or asbestos and any indemnification of Lender with respect to same; thereto in either document; (liii) impair the right of Lender to s▇▇ for, seek wrongful removal or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent destruction of any portion of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral Property or damage to the collateral resulting Property caused by willful misconduct or gross negligence of Borrower, Guarantor, any Affiliate of Borrower or Guarantor, or any of ▇▇▇.▇▇ respective agents or representatives in connection with the Loan; (iv) any intentional physical waste of the Property by Borrower, Guarantor, any Affiliate of Borrower or Guarantor, or any of their respective agents or representatives in connection with the Loan; (v) the forfeiture by Borrower of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or Guarantor or any of their respective agents or representatives in connection therewith; (vi) the misappropriation, misapplication or conversion by Borrower, Guarantor, any Affiliate of Borrower or Guarantor, or any of their respective agents or representatives in connection with the Loan of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, or (C) any Gross Revenues (including Rents, Insurance Proceeds, security deposits, advance deposits or any other deposits and Lease Termination Payments) or (D) any other funds due under the Loan Documents, including, in connection with any of the foregoing, by reason of failure to comply with Section 6.1 hereof or breach of the Clearing Account Agreement or the Cash Management Agreement; (vii) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property, provided that no liability shall arise under this clause if such charges were not incurred in violation of the Loan Documents and there is insufficient cash flow from the gross negligence Property to pay all of Borrower's current and/or past due liabilities (including such charges); (viii) any unapplied security deposits, advance deposits or willful misconduct any other deposits collected with respect to the Property which are not delivered to Lender in accordance with the provisions of the Loan Documents during the continuance of an Event of Default; (ix) the failure to pay Taxes or transfer taxes, provided Borrower or, shall not be liable for the failure to pay Taxes to the extent that funds to pay such amounts are available in the Tax Account and Lender failed to pay same or there is sufficient insufficient cash flow, flow from the Property to pay for such Taxes or transfer taxes (so long as Borrower has not misappropriated Rents in violation of the Loan Documents); (x) failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 hereof, provided Borrower shall not be liable to the extent funds to pay any Imposition, such amounts are available in the Insurance Account and Lender failed to pay same or there is insufficient cash flow from the Property to pay for such Policies (so long as Borrower has not misappropriated Rents in lieu thereof, deposit a sum equal to any Impositions into violation of the Basic Carrying Costs Sub-Account ; Loan Documents); (nxi) impair the right Borrower's indemnification of Lender set forth m Section 9.2 hereof; (xii) any cost or expense incurred by Lender in connection with the enforcement of its rights and remedies hereunder or under any other Loan Document; and/or (xiii) any misrepresentation or failure to bring disclose a suit for a monetary judgment against Borrower material fact in that certain estoppel certificate delivered by the event Condominium Association to Lender on the Closing Date. Notwithstanding anything to the contrary in this Agreement or any of the exercise of any right or remedy under any federalother Loan Documents, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (oA) Lender shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt Obligations or to require that all collateral shall continue to secure all of the Debt; Obligations owing to Lender in accordance with the Loan Documents, and (pB) impair the right of Lender Obligations shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation that any of the provisions following occur (each, a "Springing Recourse Event" ): (i) a breach of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information covenants set forth in Section 4.4 hereof or a breach of any UCC Financing Statements relating of the representations set forth in the "Recycled SPE Certificate" delivered to Lender in connection with the Collateral materially misleading without giving Lender thirty Loan; (30ii) days Borrower fails to obtain Lender's prior written notice thereof. The provisions consent to any subordinate financing secured by the Property or other voluntary Lien encumbering the Property; (iii) Borrower fails to obtain Lender's prior consent to any Transfer of the Property or any interest therein or any Transfer of any direct or indirect ownership interest in Borrower, in either case as required by the Mortgage or this Section shall be inapplicable to Agreement other than a Permitted Transfer; (iv) Borrower if (a) or any proceeding, action, SPC Party files a voluntary petition or filing under the Bankruptcy Code, Code or any similar other Federal or state bankruptcy or federal law now insolvency law; (v) Borrower is substantively consolidated with any other Person; unless such consolidation was initiated by Lender or hereafter in effect relating was involuntary and not consented to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner such SPC Party or Guarantor and consented is discharged, stayed or dismissed within sixty (60) days following the occurrence of such consolidation; (vi) the filing of an involuntary petition against Borrower and/or any SPC Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person (excluding Lender) in which Borrower and/or any SPC Party colludes with or otherwise assists such Person, and/or Borrower and/or any SPC Party solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower and/or any SPC Party by any Person; (vii) Borrower and/or any SPC Party files an answer consenting to, or acquiesced in otherwise acquiescing in, or joining in, any involuntary petition filed against it by any other Person (excluding Lender) under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (viii) Borrower or Owner any Affiliate, officer, director or representative which controls Borrower consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee or examiner for Borrower or any Affiliate portion of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor the Property; (ix) Borrower or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make SPC Party makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; or (bx) if Guarantor (or any Person comprising Guarantor), Borrower or any Affiliate contests of any of the foregoing, in bad faith connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Guaranty, the Note, the Mortgage or any material way interferes with in bad faithother Loan Document, directly seeks a defense, judicial intervention or indirectly (collectively, a “Contest”) any UCC sale injunctive or other material remedy exercised by Lender upon the occurrence equitable relief of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any actionkind, or otherwise asserts in bad faith (provided that if a pleading filed in connection with a judicial proceeding any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to defense against Lender or any right in connection with any security for the Loan other Person designated than defenses raised or sought in writing good faith in connection with such enforcement action or exercise or assertion of rights or remedies by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent on behalf of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateral.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document (a) Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the Partnersforegoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (a1) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Security Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Note, this Agreement, Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the other Loan Documentsrights and remedies of Lender thereunder (including, or without limitation, ▇▇▇▇▇▇’s right to enforce said rights and remedies against ▇▇▇▇▇▇▇▇ and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the right rights of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (dA) impair the right of Lender to obtain the appointment of a receiverreceiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (e5) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or the assignment of leases and rents contained in the Security Instrument and in any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i6) impair the right of Lender to enforce the provisions of Sections 2.02(gSection 4.12(e) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or ; (7) constitute a prohibition against Lender to bring suit for seek a monetary deficiency judgment against Borrower with respect in order to fully realize the security granted by the Security Instrument or to commence any obligation set forth other appropriate action or proceeding in said Sectionsorder for Lender to exercise its remedies against the Property (or any portion thereof); or (j) prevent or in any way hinder Lender from exercising, or 8) constitute a defense, or counterclaim, or other basis for relief in respect waiver of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge enforce the liability and obligation of Borrower Borrower, by money judgment or Guarantor otherwise, to the extent of Guarantor’s liability under any guaranty delivered Loss incurred by Guarantor Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with respect the following: (i) fraud or intentional misrepresentation by any Borrower Party in connection with the Loan; (ii) the willful misconduct of any Borrower Party; (iii) any litigation or other legal proceeding related to same; (l) impair the right Debt filed by any Borrower Party or any other action of any Borrower Party exercised in bad faith that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Lender to s▇▇ forexercise any rights and remedies available to Lender as provided herein and in the other Loan Documents; (iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Property by (or on behalf of) any Borrower Party after an Event of Default; (v) the misapplication, seek misappropriation or demand conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property (or any portion thereof), (B) any Awards or other amounts received in connection with the Condemnation of all or a deficiency judgment against Borrower solely portion of the Property, (C) any Rents following an Event of Default, (D) any Tenant security deposits or Rents collected in advance or (E) any other monetary collateral for the purpose Loan (including, without limitation, any Reserve Funds and/or any portion thereof disbursed to (or at the direction of) Borrower); (vi) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of foreclosing the Premises or any part thereofProperty in accordance with the terms and provisions hereof , or realizing upon in each case, to the Default Collateral; extent there existed sufficient cash flow from the Property to do so (provided, however, that any such deficiency judgment referred to in this clause (l) there shall be enforceable against Borrower no personal liability under this subsection (vi) solely for the failure to pay Taxes if (A) sufficient sums had been reserved hereunder for the express purpose of paying the Taxes in question and Guarantor only Lender failed to pay same, (B) ▇▇▇▇▇▇’s access to such sums was not restricted or constrained in any manner and (C) no Event of Default was continuing); (vii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein (provided, however, that there shall be no personal liability under this subsection (vii) for the aforementioned failures to the extent that, in each case, (A) each applicable failure is itself a failure to pay Insurance Premiums or is solely as a result of a failure to pay Insurance Premiums and (B)(1) there existed insufficient cash flow from the Property to pay Insurance Premiums or (2)(I) sufficient sums had been reserved hereunder for the express purpose of paying the Insurance Premiums in question and Lender failed to pay same, (II) Lender’s access to such sums was not restricted or constrained in any manner and (III) no Event of Default was continuing); (viii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default Collateral; that gave rise to such foreclosure or action in lieu thereof; (mix) impair any tax on the ability making and/or recording of the Security Instrument, the Note or any of the other Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon ▇▇▇▇▇▇’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes; (x) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party; (xi) the failure to make any REMIC Payment and/or any True Up Payment, to permit on-site inspections of the Property (or any portion thereof) and/or to provide the Required Financial Items, in each case, as and when required herein; (xii) any violation or breach of the Property Document Provisions and/or any Property Document Event; (xiii) any Claimed Water Leaks (including, without limitation, any Losses incurred due to any remedial action taken by any tenant in connection with the Claimed Water Leaks); (xiv) any indemnity obligations of Lender to bring suit for monetary judgment against Bank under the Restricted Account (xv) the failure of Borrower to appoint a New Manager upon the request of ▇▇▇▇▇▇ and/or the failure of Borrower to comply with respect any limitations on instructing the Manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (xvi) any violation or breach of any representation, warranty or covenant contained in Article 5 hereof; (xvii) any failure of a PCO to arson be in place at the Property and/or any breach of Section 4.25 hereof; (xviii) any failure to (a) obtain, maintain, and/or have in place a current certificate of occupancy at the Property that complies with all Legal Requirements, (b) update any certificate of occupancy or physical waste obtain any new certificate of occupancy at any time as required by Legal Requirements, and/or (c) to operate the Property in a manner consistent with the certificate of occupancy that is in place at the Property (including, without limitation, any failure to operate the Property in accordance with the specified uses listed on the then current certificate of occupancy). (xix) any violation or breach of the Collateral Cash Management Provisions; and/or (xx) any claims to divest, subordinate or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of extinguish the lien of the Security Instrument (including, without limitation, any such claims resulting from any breach or other failure to comply with Section 22 of the New York Lien Law). (b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the priority thereofLoan Documents, against the Collateral; (oA) Lender shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; Debt owing to Lender in accordance with the Loan Documents, and (pB) impair the right of Lender Debt shall be fully recourse to bring suit for monetary judgment against Borrower in the event that: (i) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached (provided, that, with respect to any losses resulting from such violation or breach of Article 5 hereof, such violation or breach is evidenced by a court, in a proceeding with respect to Creditors Rights Laws involving any claims, actions one or proceedings initiated by Borrower (or any Affiliate of Borrowermore Constituent Owner(s) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or and/or SPE Component Entity (any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectivelysuch Person, a “ContestBankrupt Person”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming ordering the substantive consolidation of the assets and liabilities of Borrower and/or SPE Component Entity with the assets and liabilities of any defenseBankrupt Person on the basis of, seeking any injunction among other things, such violation or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)breach) or (ii) a Bankruptcy Event occurs. (c) Borrower hereby personally guarantees (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all benefit of the assets exculpation provisions provided in Section 13.1 hereof) payment (as and when due) of Borrower the obligations set forth in Section 8.9(a)(i) hereof (including, without limitation, payment (as and when due) of each Renewal Tenant Reserve Monthly Deposit and any rightRenewal Tenant Reserve True Up). For purposes of clarification and for the avoidance of doubt, title the recourse carveouts in Section 13.1(a) above and interest this Section 13.1(b) shall not be deemed to be mutually exclusive or otherwise limit one another; without limiting the foregoing, if a particular event, condition, circumstance or occurrence would trigger recourse liability both under Section 13.1(a) above and this Section 13.1(b), recourse liability shall apply under all of Borrower in such Sections (as and to the Collateralextent provided in such Sections).

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document (a) Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument, the Pledge Agreement or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, any other Borrower Party or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower, any other Borrower Party or any legal representatives, successors or assigns of any of the Partnersforegoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument, the Pledge Agreement and the other Loan Documents, or in the Property (i) Borrower’s interest in or any portion thereof), the Collateral, (ii) subject to the rights of Mortgage LenderRents, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners any other Borrower Party only to the extent of Borrower’s and any other Borrower Party’s interest in the Property, in the Collateral, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument, the Pledge Agreement and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower, any other Borrower Party or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a1) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b2) impair the right of Lender to name Borrower or any other Borrower Party as a party defendant in any action or suit for judicial foreclosure and sale under this the Security Instrument or the Pledge Agreement; (c3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Note, this Agreement, Environmental Indemnity and in the Guaranty) made in connection with the Loan or any of the other Loan Documentsrights and remedies of Lender thereunder (including, or without limitation, Lender’s right to enforce said rights and remedies against Borrower personally and without the effect of the exculpatory provisions of this Article 13); (4) impair the right rights of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (dA) impair the right of Lender to obtain the appointment of a receiverreceiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (e5) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or the assignment of leases and rents contained in the Security Instrument and in any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i6) impair the right of Lender to enforce the provisions of Sections 2.02(gSection 4.12(e) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or ; (7) constitute a prohibition against Lender to bring suit for seek a monetary deficiency judgment against Borrower with respect or any other Borrower Party in order to fully realize the security granted by the Security Instrument or the Pledge Agreement or to commence any obligation set forth other appropriate action or proceeding in said Sectionsorder for Lender to exercise its remedies against the Collateral or the Property (or any portion thereof); or (j) prevent or in any way hinder Lender from exercising, or 8) constitute a defense, or counterclaim, or other basis for relief in respect waiver of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge enforce the liability and obligation of Borrower Borrower, by money judgment or Guarantor otherwise, to the extent of Guarantor’s liability any Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following: (i) fraud or intentional material misrepresentation by any Borrower Party or any of their respective Affiliates in connection with the Loan; (ii) willful misconduct any Borrower Party or any of their respective Affiliates in connection with the Loan or any Individual Property; (iii) any litigation or other legal proceeding related to the Debt in which any Borrower Party or their respective Affiliates files or raises a defense or asserts any right of redemption (or similar right) that intentionally interferes with Lender exercising any rights and remedies available to Lender as provided in under this Agreement and the other Loan Documents only to the extent a court of competent jurisdiction, in a final non-appealable decision, finds the applicable defenses were not raised in good faith by Borrower; (iv) intentional physical waste to any guaranty delivered Individual Property caused by Guarantor the intentional acts or intentional omissions by any Borrower Party or any of their respective Affiliates (provided that the foregoing is not the result of the insufficiency of cash flow from the Properties to prevent such intentional omissions, and if there is any insufficiency of cash flow, such insufficiency is not a result of misappropriation of Rents by any Borrower Party and/or the removal or disposal of any portion of the property by any Borrower Party or any of their respective Affiliates after an event of default other than in the ordinary course of owning and managing the Properties or otherwise in violation of this Agreement and the other Loan Documents); (v) misappropriation by any Borrower Party or any of their respective Affiliates of (A) any insurance proceeds (including BI Proceeds or Casualty Proceeds) with respect to same; the Properties, (lB) impair the right any Awards or other amounts received in connection with any Condemnation of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises all or any part thereofportion of any Individual Property, or realizing upon (C) any Rents (provided that, in each case there shall be no liability under this subsection to the Default Collateral; extent that the turnover of such funds is prohibited by any applicable law or court order); (vi) Borrower’s failure to pay (or cause to be paid) real property taxes, Ground Rent or other charges due in connection with the Properties that results in liens on any portion of any Individual Property in accordance with the terms and provisions of this Agreement and the other Loan Documents (other than if such failure is caused by the acts of a Tenant) to the extent that (i) any such liens are not bonded over or discharged in accordance with this Agreement and the other Loan Documents and (ii) the Properties generated sufficient revenue in the immediately preceding six (6) month period to pay the same and Borrower failed to apply such revenue to such real property taxes or other charges, unless such charges are the subject of a bona fide dispute in which Borrower is contesting the amount or validity thereof in accordance with the terms of this Agreement and the other Loan Documents (provided, however, that any such deficiency judgment referred to in this clause (l) there shall be enforceable against no personal liability under this subsection solely for the failure to pay real property taxes or Ground Rent if (a) sufficient sums had been reserved hereunder for the express purpose of paying the real property taxes, Ground Rent or charges in question and Lender failed to pay same, and (b) Lender’s access to such sums was not restricted or constrained by any action taken by or on behalf of any Borrower Party in any manner); (vii) Borrower’s failure to pay Insurance Premiums or the amount of any deductible following a Casualty, Condemnation or other insurance claim, to maintain the Policies in full force and Guarantor only effect, in each case, as expressly provided herein (provided, however, that there shall be no personal liability under this subsection for the aforementioned failures to the extent that, in each case, (A) the Properties generated insufficient revenue in the immediately preceding six (6) month period to pay the Insurance Premiums in question or (B) (i) sufficient sums had been reserved hereunder for the express purpose of paying the Insurance Premiums in question and Lender failed to pay same, and (ii) Lender’s access to such sums was not restricted or constrained by any action taken by or on behalf any Borrower Party in any manner); (viii) any security deposits, advance deposits or any other deposits collected by any Borrower Party or any of their respective Affiliates in connection with the Properties which are not delivered to Lender upon request upon a foreclosure or action in lieu thereof except to the extent such amounts have been previously applied by Borrower in accordance with this Agreement and the other Loan Documents, the existing leases or in accordance with a court order (provided that, in each case there shall be no liability under this subsection to the extent that the failure to turn over such funds is prohibited by any applicable law or court order); (ix) the seizure or forfeiture of any Individual Property resulting from criminal wrongdoing by any Borrower Party or any of their respective Affiliates; (x) breach or violation by any Borrower Party or any of their respective Affiliates of any of the Default Collateral; (m) impair the ability material terms of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or Sections 11.1, 11.2, 11.6, 11.8 and/or 11.9 of the Collateral Loan Agreement; (xi) any liability or damage obligation pursuant to any purchase and sale agreement entered into by a Borrower for the collateral resulting from the gross negligence sale by Borrower of a Previously-Owned Property or willful misconduct of Borrower or, any other liability or obligation otherwise related to the extent that there is sufficient cash flow, a Previously-Owned Property; (xii) failure to pay comply with the terms and provisions of Article 15 hereof; (xiii) any Impositionamendment or modification of the Ground Lease in violation of the terms hereof or any cancellation, expiration or termination (for any reason whatsoever) of the Ground Lease, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event surrender of the exercise leasehold estate thereunder in violation of the terms hereof; (xiv) without limiting Section 13.1(b)(B)(ii) below, any voluntary debt, lien or transfer of any right Individual Property or remedy under any federal, state or local forfeiture laws resulting the Collateral in the loss violation of the lien Loan Documents (other than liens being contested in good faith in accordance with the terms and provisions of this Agreement); and/or (xv) without limiting Section 13.1(b)(B)(i) below, any breach of violation by Borrower, Pledgor, Additional Obligor and/or any SPE Component Entity of Article 5 hereof, other than immaterial breaches which are promptly cured by Borrower. (b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the priority thereofLoan Documents, against the Collateral; (oA) Lender shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; Debt owing to Lender in accordance with the Loan Documents, and (pB) impair the right of Lender Debt shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of: (i) any breach or violation by Borrower, Pledgor, Additional Obligor or any SPE Component Entity of Article 5 hereof, as a Transfer result of which, a court orders the substantive consolidation of Borrower, Pledgor, Additional Obligor or any SPE Component Entity with one or more constituent owner(s) of Borrower, Pledgor, Additional Obligor and/or SPE Component Entity (any such person or entity, a “Bankrupt Person”) and which court cites such breach or violation as a material factor in ordering the substantive consolidation of the assets and liabilities of Borrower, Pledgor, Additional Obligor and/or SPE Component Entity with the assets and liabilities of the Bankrupt Person; (ii) any violation or breach of Article 6 hereof caused by (1) any voluntary transfer of the Collateral or fee simple title to all or any portion of the Property (other than with Lender’s prior written consent or as expressly permitted by this Agreement or the other Loan Documents) or (2) any sale or pledge of the ownership interests in any Restricted Party in violation of the terms of the Loan Documents, which, in the case of any sale or pledge described in this clause (2) remains uncured for a period of ten (10) days following Borrower’s obtaining knowledge of such violation (or Borrower’s receipt of notice from Lender of such violation); (iii) a Bankruptcy Event occurs; or (iv) the incurrence of any voluntary debt secured by all or any portion of any Individual Property or other Collateral or any direct or indirect interests in Borrower, except Indebtedness and liens (including, liens being contested in good faith in accordance with the terms and provisions of this Agreement; (r) impair the right of Lender expressly permitted pursuant to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the CollateralAgreement.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document to the contrary, except as otherwise set forth in this Section 8.01 to the contrary, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnershipNeither the Agent, its Affiliates, nor its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trustmembers, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholdersofficers, directors, principalsmanagers, officers employees or employees, or agents (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter individually and collectively referred to as an “Exculpatee”), shall be liable, responsible, or accountable in damages or otherwise to the “Partners”) to perform and observe the obligations contained in this Agreement Company Group, or any of the other Loan Documents by its owners, members, employees, agents or assigns, for any action taken or proceedingfailure to act (EVEN IF SUCH ACTION OR FAILURE TO ACT CONSTITUTED THE SOLE, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partners, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgmentCONCURRENT OR COMPARATIVE NEGLIGENCE OF THE AGENT OR SUCH EXCULPATEE) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such Default Collateral. The provisions of this Section shall not, however, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreementthe Services provided hereunder, unless such act or failure to act was the Note result of fraud, willful misconduct or gross negligence on the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower part of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereofExculpatee. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower Exculpatees shall have no liability whatsoever under this clause Agreement for failing to act (or limiting its actions) hereunder, and no obligation to provide any Services. (b) IN NO EVENT SHALL THE EXCULPATEE EVER BE LIABLE TO ANY SUCH PERSON OR ENTITY, OR ANY OTHER PARTY UNDER THIS AGREEMENT OR IN CONNECTION WITH SERVICES PROVIDED HEREUNDER, FOR ANY PUNITIVE, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES IN TORT, CONTRACT OR OTHERWISE, UNLESS SUCH PUNITIVE, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES IN TORT, CONTRACT OR OTHERWISE ARE CLAIMED BY A THIRD PARTY AND SUCH DAMAGES TO SUCH THIRD PARTY WERE THE RESULT OF FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF SUCH EXCULPATEE. TO THE EXTENT PERMITTED BY LAW, THE COMPANY HEREBY WAIVES THE PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES CONSUMER PROTECTION ACT, §§ 17.41, ET. SEQ., OF THE TEXAS BUSINESS AND COMMERCE CODE (OTHER THAN SECTION 17.555)) or (c) Borrower (i) fails . The exculpation provided by this Section 2.7 shall continue as to cause Owner an Exculpatee who has ceased to deliver notice of default under any Ground Lease serve in such capacity, and shall inure to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all benefit of the assets heirs, successors, assigns, administrators and personal representatives of Borrower including, without limitation, any right, title and interest of Borrower in and to the CollateralExculpatees.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) Operating Lessee to perform and observe the obligations contained in the Note, this Agreement Agreement, the Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, Operating Lessee or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or affiliate of Borrower or Operating Lessee (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the Partnersforegoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners and/or Operating Lessee only to the extent of Borrower’s or Operating Lessee’s, as applicable, interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or Operating Lessee or any of the Exculpated Parties, in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender to name Borrower and/or Operating Lessee as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Security Instrument; (c) affect the validity or enforceability of any indemnity, guaranty, or similar instrument made in connection with the Note, this Agreement, Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guarantythereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate the assignment of Borrower leases and rents contained in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to sameSecurity Instrument; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(gthe Environmental Indemnity or of Section 4.1.6(i) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or hereof; (g) constitute a prohibition against Lender to bring suit for seek a monetary deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with respect the Loan or to commence any obligation set forth other appropriate action or proceeding in said Sectionsorder for Lender to exercise its remedies against such security; or (jh) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect waiver of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge enforce the liability and obligation of Borrower and/or Operating Lessee, by money judgment or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ forotherwise, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the Default Collateral; following: (mi) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson fraud or physical waste to or willful misrepresentation by Borrower, Operating Lessee, any of the Collateral Exculpated Parties or damage to any Borrower Party in connection with the collateral resulting from Loan; (ii) the gross negligence or willful misconduct of Borrower, Operating Lessee, any of the Exculpated Parties or any Borrower orParty in connection with the Loan; (iii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in any such document; (iv) waste to the extent that there is sufficient cash flowProperty (or any portion thereof) caused by intentional acts or intentional omissions of Borrower, failure to pay Operating Lessee, any ImpositionExculpated Party, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this AgreementParty, or the priority thereof, against the Collateral; (o) be deemed a waiver removal or disposal of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision portion of the Bankruptcy Code to file a claim for Property after an Event of Default; (v) the full amount misapplication, misappropriation or conversion by Borrower, Operating Lessee, any of the Debt Exculpated Parties or the Borrower Parties of (A) any insurance proceeds paid by reason of any loss, damage or destruction to require that the Property, (B) any Awards or other amounts received in connection with the Condemnation of all collateral shall continue to secure all or a portion of the Debt; Property, or (pC) impair any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance; (vi) any Personal Property taken from the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions Property by or proceedings initiated by Borrower (or any Affiliate on behalf of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partnersOperating Lessee, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions Exculpated Parties or the Borrower Parties, and not replaced with Personal Property of this Agreement; the same utility and of the same or greater value; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (avii) any proceedingact of arson by Borrower, actionOperating Lessee, petition or filing under any of the Bankruptcy CodeExculpated Parties, or any similar state Borrower Parties; (viii) any fees or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in commissions paid by Borrower or Owner or any Affiliate of Borrower, Owner or GuarantorOperating Lessee, or if Borrower, Owner or Guarantor or any Affiliate on behalf of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faithOperating Lessee, directly or indirectly (collectivelyas applicable, a “Contest”) any UCC sale or other material remedy exercised by Lender upon after the occurrence of an Event of Default under to any Exculpated Party or any Borrower Party in violation of the terms of the Note, this Agreement, the Security Instrument or the other Loan Documents whether by making any motionDocuments; (ix) failure to pay Taxes, bringing any counterclaim (other than a compulsory counterclaim)charges for labor or materials, claiming any defense, seeking any injunction or other restraintcharges that can create Liens on any portion of the Property and/or the failure to pay Insurance Premiums in accordance with the terms hereof; (x) any security deposits, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender advance deposits or any other Person designated deposits collected with respect to any Individual Property which are not delivered to Lender upon a foreclosure of such Individual Property or action in writing by Lender or (ii) fails lieu thereof, except to prevent Owner from amending or modifying the extent any Ground Lease without such security deposits were applied in accordance with the prior written consent terms and conditions of Lender, in which event Lender shall have recourse against all any of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and Leases prior to the Collateraloccurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof; (xi) any failure by Borrower and/or Operating Lessee to permit on-site inspections of any Individual Property as required by this Agreement and/or the other Loan Documents; (xii) any failure of Operating Lessee to appoint a new property manager upon the request of Lender as required by the terms of this Agreement and/or the other Loan Documents; (xiii) Borrower’s and/or Operating Lessee’s breach of, or failure to comply with, the representations, warranties and covenants contained in the Franchise Provisions, Section 4.1.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document Subject to the contraryqualifications below, except as otherwise set forth in this Section 8.01 to ----------- neither Agent on behalf of the contrary, Lender Lenders nor the Lenders directly shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Credit Agreement or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower (or any member, shareholder, partner or other owner of Borrower, or any separate account contract holder, beneficial owner, advisor, consultant, manager, fiduciary, director, officer or employee of any of the Partnersforegoing), unless, except that Lender may bring a UCC sale, action for specific performance, or other appropriate action or proceeding as expressly reserved in clause (including, without limitation, an action to obtain a deficiency judgmente) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject to the rights of Mortgage Lenderbelow, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower's interest in the collateral given to Agent on behalf of the Lenders, and Agent on behalf of the Lenders, by accepting the Note, this Credit Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Credit Agreement or the other Loan Documents except for any deficiency judgment that shall be enforced solely against or collected solely from the collateral given to Agent on behalf of the Lenders. The provisions of this Section shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender Agent on behalf of the Lenders to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Pledge; (c) affect the validity or enforceability of or any guaranty or indemnity made in connection with the Note, this Agreement, Loan or any of the other Loan Documents, or impair rights and remedies of Agent on behalf of the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the GuarantyLenders thereunder; (d) impair the right of Lender Agent on behalf of the Lenders to obtain the appointment of a receiver; or (e) impair constitute a waiver of the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower Agent or any of its Affiliates includingthe Lenders to enforce the liability and obligation of Borrower, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantorby money judgment or otherwise, to the extent of Guarantor’s liability under any guaranty delivered loss, damage, cost, expense, liability, claim or other obligation incurred by Guarantor, Agent or any of the Lenders (including attorneys' fees and costs reasonably incurred) arising out of or in connection with (but only to the foregoing provisions shall not modify, diminish extent of) the following: (i) waste committed by or discharge the liability on behalf of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s the Mortgaged Property or Owner’s misappropriation of tenant security deposits the Pledged Collateral; (ii) fraud, misrepresentation or Rent collected more than one willful misconduct by Borrower in connection with the Loan; (1iii) month in advance, and the foregoing provisions shall not modify, diminish removal or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full disposal by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect portion of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of Mortgaged Property after an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateral.Default; and

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document to the contraryNo Independent Manager, except as otherwise set forth in this Section 8.01 to the contraryManager, Lender shall not enforce the liability and obligation Officer, Member, Affiliate of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnershipMember, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholdersofficers, directors, principals, officers employees or employees, or (d) if Borrower managers or any liquidating trustee or fiduciary of its direct or indirect owners is the Company (each a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “PartnersCovered Person”) shall be liable to perform and observe the obligations contained in this Agreement Company or any Member under any theory of law, including tort, contract or otherwise (INCLUDING A COVERED PERSON’S OWN NEGLIGENCE OR GROSS NEGLIGENCE) for any loss, damage or claim incurred by reason of any act or omission by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, including any such loss, damage or claim attributable to errors in judgment, negligence or other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partnersfault of such Covered Person, except that Lender may bring a UCC saleCovered Person shall be liable for any such loss, action for specific performancedamage or claim incurred by reason of Culpable Acts of such Covered Person. A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject statements presented to the rights Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of Mortgage Lenderthe Company, the Rent including information, opinions, reports or statements as to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) value and not applied towards Debt Service or the operation and maintenance amount of the Property and (iii) any other collateral then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); providedassets, howeverliabilities, that any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of any such Default Collateral. The provisions of this Section shall notprofits, however, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) losses or any other provision of facts pertinent to the Bankruptcy Code to file a claim for the full existence and amount of the Debt or assets from which distributions to require that all collateral shall continue to secure all of the Debt; Members might properly be paid. IN NO EVENT WILL A COVERED PERSON BE LIABLE TO THE COMPANY OR ANY MEMBER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR ANY OTHER NON-DIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR FUTURE REVENUES, COST OF CAPITAL, LOSS OF BUSINESS REPUTATION OR OPPORTUNITY OR ANY CLAIM OR DEMAND AGAINST THE COMPANY BY ANY OTHER PARTY DUE TO ANY CAUSE WHATSOEVER (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claimsINCLUDING, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturersWITHOUT LIMITATION, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaimTHE COVERED PERSON’S OWN NEGLIGENCE OR GROSS NEGLIGENCE), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the CollateralEVEN IF A COVERED PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document (I) Subject to the contraryqualifications below, except as otherwise set forth in this Section 8.01 to the contrary, Lender neither Agent nor Lenders shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Mortgage or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the Partnersforegoing (collectively, the “Exculpated Parties”), except that Lender Agent may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender enable Agent and Lenders to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Agent and/or Lenders pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Agent, and Lenders and Agent, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, shall not s▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties, in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this Section shall not, however, (a) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b) impair the right of Lender Agent or Lenders to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Mortgage; (c) affect the validity or enforceability of any indemnity, guaranty, or similar instrument made in connection with the Note, this Agreement, Loan or any of the other Loan Documents, rights and remedies of Agent or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the GuarantyLenders thereunder; (d) impair the right of Lender Agent or Lenders to obtain the appointment of a receiver; (e) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate the Assignment of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to sameLeases; (f) impair the right of Agent or Lenders to enforce the provisions of the Guaranty or the Environmental Indemnity; (g) constitute a prohibition against Agent or Lenders to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the Loan or to commence any other appropriate action or proceeding in order for Agent or Lenders to exercise its remedies against such security; or (h) constitute a waiver of the right of Lender to bring suit for a monetary enforce the liability and obligation of Borrower, by money judgment or otherwise, to obtain the Recourse Distributions received extent of any actual Losses incurred by Borrower Agent and Lenders (including out-of-pocket attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (“Loss Liability”): (i) fraud or intentional misrepresentation by Borrower, Guarantor or any Borrower Party in connection with the Loan; (ii) the gross negligence or willful misconduct of its Affiliates Borrower, Guarantor or any Borrower Party in connection with the Loan; (iii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in any other Loan Document concerning environmental laws, hazardous substances and asbestos and any indemnification of Agent and Lenders with respect thereto in any such document; (iv) material physical waste to the Property caused by intentional acts or intentional omissions of Borrower, Guarantor or any Borrower Party, other than waste (or alleged waste) to the Property resulting from the insufficiency of cash flow from the Property to prevent such waste and such insufficiency is not a result of misappropriation of Rents by Borrower, Guarantor or any Borrower Party or the removal of any material portion of the Property other than in the ordinary course of business; (v) subject to Borrower’s right to contest the same as expressly set forth herein, (A) failure to pay Taxes, (B) charges for labor or materials, or other charges that can create Liens, including, without limitation, mechanics’ or materialmens’ liens, on any portion of the right Property (provided that the foregoing shall not apply to bring suit for a monetary judgement any charges or liens caused by work done by any Tenant at the Property provided that Borrower is using all commercially reasonable efforts under the applicable Lease to proceed against cause such Tenant to pay such amounts expeditiously) and/or (C) the failure to pay Insurance Premiums in accordance with the terms hereof; provided that clauses (A) and (C) shall not apply at any Guarantortime that (x) there is not sufficient cash flow to pay the same and such insufficiency is not due to misappropriation of the same, or (y) there are sufficient amounts on reserve to pay such amounts and Agent shall not have made such amounts available to pay the same; (vi) the misapplication, misappropriation or conversion by Borrower, or any Borrower Parties in contravention of the Loan Documents of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the extent Property, (B) any Awards or other amounts received in connection with the Condemnation of Guarantor’s liability under all or a portion of the Property, (C) any guaranty delivered by GuarantorRents paid during the continuance of an Event of Default, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (gD) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent any Rents collected more than one (1) month in advanceadvance of the date the same were due, and (E) Rents not applied in accordance with the foregoing provisions shall requirements of the Loan Documents, (F) any amounts disbursed from Reserve Funds, or (G) any proceeds of any Future Advance; (vii) any security deposits, advance deposits or any other deposits collected with respect to the Property which are not modifydelivered to Agent upon a foreclosure of the Property or action in lieu thereof, diminish or discharge the liability of Borrower or Guarantor except to the extent any such security deposits, advance deposits or other deposits were applied in accordance with the terms and conditions of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt Leases; (viii) the breach of any representation, warranty or to bring suit for a monetary judgment against covenant of Borrower with respect to itself or any obligation SPE Party set forth in said Sections; Section 3.1.24 or Section 3.1.42 hereof (junless such breach is de minimis and promptly cured); (ix) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, litigation or other basis legal proceeding related to the Loan filed by Borrower, Guarantor or any Borrower Party or any Affiliate of Guarantor that is determined by final, non-appealable judgment of a court of competent jurisdiction to have been undertaken in bad faith for relief in respect the sole purpose of delaying, opposing, impeding, obstructing, hindering, enjoining or otherwise interfering with or frustrating the efforts of Agent and/or Lenders to exercise ofany rights and remedies available to Agent and/or Lenders; (x) Borrower’s failure to pay rent, additional rent or any other remedy against any or all of amounts due and payable under the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, Ground Lease to the extent that there the revenue from the Property is sufficient cash flowto pay such amounts in the order and priority required by the Loan Documents; (xi) Borrower’s failure to maintain an Interest Rate Protection Agreement in a notional amount equal to the principal amount of the Loan then advanced and outstanding; (xii) Borrower failing to obtain Agent’s prior written consent to any transfer as required by the Loan Documents except a transfer meeting the criteria set forth in clause II(v) below; (xiii) if any of the terms, failure covenants or conditions of the Reciprocal Easement Agreement shall in any manner be modified, changed, supplemented, altered, or amended without the consent of Agent; (xiv) Borrower failing to pay any Imposition, amounts payable pursuant to the Ground Lease and/or the Agreement Concerning Interests in connection with the Ground Lease Put or in lieu thereof, deposit a sum equal to any Impositions into Ground Lease ROFR; (xv) the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, Ground Lease or the priority thereofReciprocal Easement Agreement is terminated for any reason, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, as a result of a rejection of the Ground Lease (by any right, title and interest of Borrower Person) in and a bankruptcy proceeding (relating to the Collateralany Person); and/or (xvi) there is an Action For Partition brought by any Person.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document (a) Subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower (but specifically excluding Guarantor) or any legal representatives, successors or assigns of any of the Partnersforegoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (a1) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Security Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or similar instrument (including, without limitation, the Noteindemnities set forth in Article 12 hereof, this Agreement, in the Guaranty and in the Environmental Indemnity) made in connection with the Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender thereunder (including, without limitation, Lender’s right to seek a personal judgment enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the Guarantor to effect of the extent and for the obligations guaranteed in the Guarantyexculpatory provisions of this Article 13); (d4) impair the right of Lender to obtain the appointment of a receiver; (e5) impair the right enforcement of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate the assignment of Borrower leases and rents contained in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to sameSecurity Instrument; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i6) impair the right of Lender to enforce the provisions of Sections 2.02(gSection 4.12(e) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or ; (7) constitute a prohibition against Lender to bring suit for seek a monetary deficiency judgment against Borrower with respect in order to fully realize the security granted by the Security Instrument or to commence any obligation set forth other appropriate action or proceeding in said Sectionsorder for Lender to exercise its remedies against the Property or any Individual Property; or (j) prevent or in any way hinder Lender from exercising, or 8) constitute a defense, or counterclaim, or other basis for relief in respect waiver of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge enforce the liability and obligation of Borrower Borrower, by money judgment or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ forotherwise, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with any of the Default Collateral; following: (mi) impair fraud or intentional misrepresentation or any failure to disclose a material fact by Borrower, Guarantor, Sponsor, or any Borrower Party in connection with the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from Loan; (ii) the gross negligence or willful misconduct of Borrower, any SPE Component Entity, Guarantor, Sponsor, or any Borrower orParty or the commission of a criminal act by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party which results in a forfeiture of the Property; (iii) material physical waste to the Property caused by the intentional acts or intentional omissions of Borrower, any SPE Component Entity, Guarantor, Sponsor, or any Borrower Party (including, without limitation, any arson or abandonment of the Property) and/or the removal or disposal of any portion of the Property after an Event of Default by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party; (iv) the misapplication, misappropriation or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default or (D) any Tenant security deposits or Rents collected in advance; (v) failure to pay (or cause to be paid) any Taxes or Other Charges, charges for labor or materials or any other charges that can create liens on any portion of the Property to the extent that there the revenue from the Property is sufficient cash flowto pay such amounts (other than (x) amounts deposited with Lender as Tax and Insurance Reserve Funds for Taxes or Other Charges where Lender elects not to apply such funds toward payment of such Taxes or Other Charges owed or (y) Taxes or Other Charges owed that are contested strictly in accordance with the terms of the Loan Documents); (vi) the breach of any material representation, warranty, covenant or indemnification provision in the Environmental Indemnity, this Agreement or in the Security Instrument concerning Environmental Laws and Hazardous Substances and any indemnification of Lender with respect thereto in either document; (vii) any fees or commissions paid by Borrower after the occurrence of an Event of Default to Guarantor, Sponsor and/or any Borrower Party in violation of the terms of the Note, this Agreement, the Security Instrument or the other Loan Documents; (viii) Borrower’s breach of, or failure to comply with, the representations, warranties and covenants contained in Article 15 of this Agreement and/or the provisions of Sections 12.2 and 12.3 hereof; (ix) failure to maintain insurance as required by this Agreement to the extent that the revenue from the Property is sufficient to pay the Insurance Premiums relating thereto (other than the failure to pay any Imposition, or in lieu thereof, deposit a sum equal amounts deposited with Lender as Tax and Insurance Funds for Insurance Premiums to any Impositions into the Basic Carrying Costs Subbe paid to maintain such insurance where Lender elects not to apply such funds toward payment of such Insurance Premiums); (x) Borrower fails to permit on-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event site inspections of the exercise Property, fails to provide the Required Financial Items or fails to appoint a new property manager upon the request of any right Lender, each as required by, and in accordance with the terms and provisions of, this Agreement, the Assignment of Management Agreement and the other Loan Documents or remedy under any federal, state Borrower appoints a new property manager or local forfeiture laws resulting replaces the property manager other than in accordance with the loss of the lien terms of this Agreement, the Assignment of Management Agreement and the other Loan Documents; (xi) any litigation or other legal proceeding related to the Debt filed in bad faith by Borrower, any SPE Component Entity, Guarantor, Sponsor or any Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents; (xii) the seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing by Borrower, Guarantor, Sponsor, or any Borrower Party; (xiii) failure to pay (or cause the payment of) rent, additional rent or any other amounts due and payable under the Ground Lease, including, without limitation, the SAF Contribution under the Missouri Ground Lease (as defined in the Missouri Ground Lease); (xiv) failure to pay (or cause the payment of) all outstanding SAF Contributions, the outstanding amounts payable under the Bonds, and any compensation payable to Trustee or the priority thereofCounty (each as defined in the Missouri Ground Lease) upon termination or earlier expiration of the Missouri Ground Lease (including, against without limitation, prior to a foreclosure or delivery of deed-in-lieu of foreclosure); (xv) failure to pay (or cause the Collateralpayment of) an amount equal to the difference between (A) the Allocated Loan Amount for the New Hampshire Property and (B) the sum of (i) the building insurance proceeds estimated to be received from the insurance carrier for the New Hampshire Property and (ii) the proceeds from the sale of the land for the New Hampshire Property (such amount being referred to herein as the “Gap Amount”), in the event that there is a Casualty at the New Hampshire Property; (xvi) the Condemnation of the Colorado Property whereby the Tenant at the Colorado Property makes a claim for an award pursuant to the terms of its Lease which then reduces an award payable to Colorado Borrower for its fee interest in the Colorado Property; and/or (oxvii) Additional Interest not being paid. Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; Debt owing to Lender in accordance with the Loan Documents, and (pB) impair the right of Lender Debt shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event that: (i) any representation, warranty or covenant contained in Article 5 or Article 6 or Section 4.14 hereof is violated or breached, provided, however, that any such breach or violation with respect to Article 5 shall not result in recourse liability hereunder unless such breach was material and, within fifteen (15) days of notice from Lender, Borrower fails to cure such breach and fails to deliver to Lender a Transfer in violation of New Non-Consolidation Opinion to the provisions of this Agreementeffect that such failure does not negate/impair the opinion previously delivered to Lender; (rii) impair the right of Lender to bring suit for Borrower or any SPE Component Entity files a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, voluntary petition or filing under the Bankruptcy CodeCode or any other Creditors’ Rights Laws; (iii) an Affiliate, officer, director, or representative which Controls, directly or indirectly, Borrower or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvencySPE Component Entity files, or joins in the arrangement filing of, an involuntary petition against Borrower or adjustment any SPE Component Entity under the Bankruptcy Code or any other Creditors’ Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPE Component Entity from any Person; (iv) Borrower or any SPE Component Entity files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Creditors’ Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (v) any Affiliate, officer, director, or representative which Controls Borrower or any SPE Component Entity consents to or acquiesces in or joins in an application for the appointment of debtsa custodian, shall be (A) filed by receiver, trustee, or examiner for Borrower, Owner any SPE Component Entity or Guarantor or any portion of the Property; (Bvi) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make SPE Component Entity makes an assignment for the benefit of creditors creditors, or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (bvii) there is substantive consolidation of Borrower or any SPE Component Entity (or any Restricted Party) with any other Person in connection with any federal or state bankruptcy proceeding involving the Guarantor or any of its Affiliates; (viii) Borrower or any Affiliate SPE Component Entity (or any Restricted Party) contests in bad faith or in opposes any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised motion made by Lender upon to obtain relief from the occurrence automatic stay or seeks to reinstate the automatic stay in the event of an Event any federal or state bankruptcy or insolvency proceeding involving the Guarantor or its Affiliates; (ix) Borrower’s failure to deposit any springing Reserve Funds deposits pursuant to the terms of Default under this Agreement; (x) the Loan Documents whether by making any motionMissouri Ground Lease is terminated, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, cancelled or otherwise in bad faith ceases to exist and MO Borrower has not exercised its purchase option pursuant to the terms of the Missouri Ground Lease, and/or (provided that if any such Person obtains a nonxi) the Tennessee Sub-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease is terminated, cancelled or otherwise ceases to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground exist and the Tennessee Prime Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateraldoes not simultaneously terminate.

Exculpation. Notwithstanding anything in this Agreement or in any other Loan Document to the contrary, except Except as otherwise set forth in this Section 8.01 Agreement, NNCB's sole obligation hereunder shall be to distribute, as aforesaid, to NCI the Participation Percentage of any payment received by NNCB relating to the contraryExchangeable Transferor Certificate as and when received by NNCB. No other obligation or duty is assumed by NNCB beyond the foregoing, Lender nor shall any other obligation or duty be deemed to be implied. NNCB shall not enforce have any fiduciary relationship with generality of the liability foregoing. Except with respect to representations and obligation of Borrower or any Person holding a direct or indirect interest warranties set forth in Borrower (a) if Borrower this Agreement, NNCB does not assume, nor shall NNCB or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholdersofficers, directors, principalsemployees or agents have any responsibility or liability, officers expressed or employeesimplied, to NCI for: (i) Any action taken or omitted, whether by the Trustee, the Servicer, or by any other person in connection with any Receivable except for NNCB's own gross negligence or willful misconduct; (dii) if Borrower The authorization, execution, effectiveness, enforceability, genuineness or validity of any of its direct or indirect owners is a limited liability companyReceivable, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform Pooling and observe the obligations contained in this Servicing Agreement or any of the document, instrument or other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment shall be sought against Borrower or the Partnerswriting in connection therewith, except that Lender may bring a UCC salewith respect to the authorization, action for specific performanceexecution, effectiveness, enforceability, genuineness or validity by or against NNCB of any such document, instrument or other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling Lender to realize upon (i) Borrower’s interest in the Collateral, (ii) subject to the rights of Mortgage Lender, the Rent to the extent received writing executed by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service or the operation and maintenance of the Property and NNCB; (iii) The genuineness, truthfulness or accuracy of any recitals, statements, representations or warranties made in or in connection with any Receivables, or the Pooling and Servicing Agreement or any other collateral then subject to the Loan Documents (the collateral described document, instrument or other writing in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”); providedconnection therewith, however, that except for any judgment representation and warranty of NNCB made in any such action document, instrument or proceeding shall be enforceable against Borrower and the Partners only to the extent writing executed by NNCB; (iv) The financial condition of any such Default Collateral. Obligor or for any credit or other information regarding any Obligor or card issuer; or (v) The provisions performance of this Section shall not, however, (a) impair the validity of the Debt evidenced by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents obligations of any person (including any Obligor) primarily or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by Lender; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement; (c) affect the validity or enforceability of the Note, this Agreement, or any of the other Loan Documents, or impair the right of Lender to seek a personal judgment against the Guarantor to the extent and for the obligations guaranteed in the Guaranty; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to fraud or material misrepresentation by Borrower, or any Affiliate of Borrower in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions received by Borrower or any of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions of Sections 2.02(g) and 4.01, inclusive of this Agreement, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower secondarily liable with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any of the Default Collateral; (m) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account ; (n) impair the right of Lender to bring a suit for a monetary judgment against Borrower in the event of the exercise of any right or remedy under any federal, state or local forfeiture laws resulting in the loss of the lien of this Agreement, or the priority thereof, against the Collateral; (o) be deemed a waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; (p) impair the right of Lender to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, petition or filing under the Bankruptcy Code, or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts, shall be (A) filed by Borrower, Owner or Guarantor or (B) filed against Borrower, Owner or Guarantor and consented to or acquiesced in by Borrower or Owner or any Affiliate of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make an assignment for the benefit of creditors or (b) Borrower or any Affiliate contests in bad faith or in any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised by Lender upon the occurrence of an Event of Default under the Loan Documents whether by making any motion, bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (c) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated in writing by Lender or (ii) fails to prevent Owner from amending or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the CollateralReceivable.

Exculpation. (a) Notwithstanding anything in this Agreement to the contrary herein or in any of the other Loan Document Documents but subject to the contrary, except as otherwise set forth in this Section 8.01 to the contraryqualifications below, Lender shall not enforce the liability and obligation of Borrower or any Person holding a direct or indirect interest in Borrower (a) if Borrower or any of its direct or indirect owners is a partnership, its or their direct or indirect constituent partners or any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of its direct or indirect owners is a limited liability company, any of its or their direct or indirect members (the Persons described in the foregoing clauses (a) — (d), as the case may be, are hereinafter referred to as the “Partners”) to perform and observe the obligations contained in the Note, this Agreement Agreement, the Security Instrument or any of the other Loan Documents by any action or proceeding, including, without limitation, any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, manager, trustee, agent, or Affiliate of Borrower (but specifically excluding Guarantor subject to the Partnersterms of the Guaranty) or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a UCC saleforeclosure action, an action for specific performance, performance or any other appropriate action or proceeding (including, without limitation, an action to obtain a deficiency judgment) against Borrower solely for the purpose of enabling enable Lender to enforce and realize upon (i) Borrower’s its interest under the Note, this Agreement, the Security Instrument and the other Loan Documents, or in the Collateral, (ii) subject to the rights of Mortgage LenderProperty, the Rent to the extent received by Borrower during the existence of an Event of Default (all Rent covered by this clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied towards Debt Service Rents, or the operation and maintenance of the Property and (iii) any other collateral then subject given to Lender pursuant to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii) is hereinafter referred to as the “Default Collateral”)Documents; provided, however, that that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and the Partners only to the extent of Borrower’s interest in the Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument and the other Loan Documents, shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such Default Collateralaction or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Security Instrument or the other Loan Documents. The provisions of this Section shall not, however, (a1) impair the validity constitute a waiver, release or impairment of the Debt any obligation evidenced or secured by the Note or in any way affect or impair the lien of this Agreement or any of the other Loan Documents or the right of Lender to enforce this Agreement during the existence of an Event of Default the cure of which has not been accepted by LenderDocuments; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreementthe Security Instrument; (c3) affect the validity or enforceability of any separate written indemnity or guaranty (including, without limitation, the Note, this Agreement, Guaranty) made in connection with the Loan or any of the other Loan Documents, or impair the right rights and remedies of Lender thereunder (including, without limitation, Lender’s right to seek a personal judgment enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally in such separate written indemnity or guaranty and without the Guarantor to effect of the extent and for the obligations guaranteed in the Guarantyexculpatory provisions of this Article 13); (d4) impair the right of Lender to obtain the appointment of a receiver; (e5) impair the right enforcement of the assignment of leases and rents contained in the Security Instrument; (6) [intentionally omitted]; (7) constitute a prohibition against Lender to bring suit for seeking a monetary deficiency judgment against Borrower with respect in order to fraud fully realize the security granted by the Security Instrument (but not to impose personal liability upon Borrower contrary to this Section 13.1) or material misrepresentation by Borrower, to commence any other appropriate action or any Affiliate of Borrower proceeding in connection with this Agreement, the Note or the other Loan Documents, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (f) impair the right of order for Lender to bring suit for exercise its remedies against the Property; or (8) constitute a monetary judgment to obtain the Recourse Distributions received by Borrower or any waiver of its Affiliates including, without limitation, the right to bring suit for a monetary judgement to proceed against any Guarantor, to the extent of Guarantor’s liability under any guaranty delivered by Guarantor, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor with respect to same; (g) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to Borrower’s or Owner’s misappropriation of tenant security deposits or Rent collected more than one (1) month in advance, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (h) impair the right of Lender to obtain insurance proceeds due to Lender pursuant to this Agreement; (i) impair the right of Lender to enforce the provisions liability and obligation of Sections 2.02(g) and 4.01Borrower, inclusive of this Agreementby money judgment or otherwise, even after repayment in full by Borrower of the Debt or to bring suit for a monetary judgment against Borrower with respect to any obligation set forth in said Sections; (j) prevent or in any way hinder Lender from exercising, or constitute a defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against any or all of the collateral securing the Note as provided in the Loan Documents; (k) impair the right of Lender to bring suit for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by Guarantor with respect to same; (l) impair the right of Lender to s▇▇ for, seek or demand a deficiency judgment against Borrower solely for the purpose of foreclosing the Premises or any part thereof, or realizing upon the Default Collateral; provided, however, that any such deficiency judgment referred to in this clause (l) shall be enforceable against Borrower and Guarantor only to the extent of any Losses incurred by Lender (including attorneys’ fees and costs reasonably incurred) directly arising out of or caused by the following: (i) fraud or willful misrepresentation by Borrower, any SPE Component Entity, any of the Default Collateral; Exculpated Parties or Guarantor in connection with the Loan; (mii) impair the ability of Lender to bring suit for monetary judgment against Borrower with respect to arson or physical waste to or of the Collateral or damage to the collateral resulting from the gross negligence or willful misconduct of Borrower orBorrower, any SPE Component Entity, any of the Exculpated Parties or Guarantor; (iii) material physical waste to the extent that there is sufficient cash flowProperty (or any portion thereof) caused by the intentional acts or intentional omissions of Borrower, failure any SPE Component Entity, any of the Exculpated Parties or Guarantor and/or the removal or disposal of any portion of the Property by Borrower, any SPE Component Entity, any of the Exculpated Parties or Guarantor after an Event of Default; (iv) the misapplication, misappropriation or conversion by Borrower of (A) any insurance proceeds paid by reason of any Casualty to pay the Property (or any Impositionportion thereof), or (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, which such proceeds or Award are received by Borrower and not applied as required hereunder or under the other Loan Documents; (v) the misapplication, misappropriation or conversion by Borrower of any Rents during the continuance of an Event of Default, which are received by Borrower and not applied by Borrower to the payment of either (i) normal and necessary Operating Expenses or (ii) the Debt; (vi) failure by Borrower to pay, or cause to be paid, prior to delinquency any Taxes or Other Charges if non-payment of the same would create liens senior to the lien of the Security Instrument on all or any portion of the Property; (vii) the failure of Borrower to deliver any security deposits, advance deposits or any other deposits collected with respect to the Property to Lender, upon a foreclosure of the Property (or any portion thereof) or action in lieu thereof, deposit a sum equal except to the extent any Impositions into such security deposits were applied in accordance with the Basic Carrying Costs Sub-Account ; terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof; (nviii) impair the right material breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity, this Agreement or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document; (ix) Borrower’s failure to bring a suit for a monetary judgment against Borrower comply with the indemnification obligations in Sections 11.2 and 12.3 hereof; (x) the event breach of any material representation, warranty or covenant contained in Article 5 hereof; and/or (xi) the seizure or forfeiture of the exercise of Property, or any right portion thereof, or remedy under any federalBorrower’s interest therein, state resulting from criminal wrongdoing by Borrower or local forfeiture laws resulting Guarantor. (b) Notwithstanding anything to the contrary in the loss of the lien of this Agreement, the Note or any of the priority thereofLoan Documents, against the Collateral; (oA) Lender shall not be deemed a waiver of to have waived any right which Lender may have under Sections Section 506(a), 506(b), 1111(b) or any other provision provisions of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all collateral shall continue to secure all of the Debt; Debt owing to Lender in accordance with the Loan Documents, and (pB) impair the right of Lender Debt shall be fully recourse to bring suit for monetary judgment against Borrower with respect to any losses resulting from any claims, actions or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging that the relationship of Borrower and Lender is that of joint venturers, partners, tenants in common, joint tenants or any relationship other than that of debtor and creditor; (q) impair the right of Lender to bring suit for a monetary judgment against Borrower in the event of that: (i) Borrower or any SPE Component Entity files a Transfer in violation of the provisions of this Agreement; (r) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower moves its principal place of business or its books and records relating to the Collateral which are governed by the UCC, or changes its name, its jurisdiction of organization, type of organization or other legal structure or, if it has one, organizational identification number, without first giving Lender thirty (30) days prior written notice; or (s) impair the right of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or otherwise does anything which would make the information set forth in any UCC Financing Statements relating to the Collateral materially misleading without giving Lender thirty (30) days prior written notice thereof. The provisions of this Section shall be inapplicable to Borrower if (a) any proceeding, action, voluntary petition or filing under the Bankruptcy CodeCode or any other Creditors Rights Laws; (ii) an Affiliate, officer, director, or any similar state representative which Controls, directly or federal law now or hereafter in effect relating to bankruptcyindirectly, reorganization or insolvencyBorrower files, or joins in the arrangement filing of, an involuntary petition against Borrower or adjustment of debtsany SPE Component Entity under the Bankruptcy Code or any other Creditors Rights Laws, shall or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPE Component Entity from any Person; (Aiii) filed by Borrower, Owner Borrower or Guarantor any SPE Component Entity files an answer consenting to or (B) otherwise acquiescing in or joining in any involuntary petition filed against Borrowerit, Owner by any other Person under the Bankruptcy Code or Guarantor and consented any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against it; (iv) any Affiliate, officer, director, or representative which Controls Borrower or any SPE Component Entity consents to or acquiesced acquiesces in by or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or Owner any SPE Component Entity or any Affiliate portion of Borrower, Owner or Guarantor, or if Borrower, Owner or Guarantor the Property (other than a receiver requested by Lender in connection with enforcement of its rights under the Loan Documents); (v) Borrower or any Affiliate of Borrower, Owner or Guarantor shall institute any proceeding for Borrower’s or Owner’s dissolution or liquidation, or Borrower, Owner or Guarantor shall make SPE Component Entity makes an assignment for the benefit of creditors creditors, or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (bvi) [Intentionally omitted]; (vii) Borrower or any Affiliate SPE Component Entity (or any Restricted Party) contests in bad faith or in opposes any material way interferes with in bad faith, directly or indirectly (collectively, a “Contest”) any UCC sale or other material remedy exercised motion made by Lender upon to obtain relief from the occurrence automatic stay or seeks to reinstate the automatic stay in the event of an Event of Default under any federal or state bankruptcy or insolvency proceeding involving the Loan Documents whether by making any motion, bringing any counterclaim Guarantor or its Affiliates; (other than a compulsory counterclaim), claiming any defense, seeking any injunction or other restraint, commencing any action, or otherwise in bad faith (provided that if any such Person obtains a non-appealable order successfully asserting a Contest, Borrower shall have no liability under this clause (b)) or (cviii) Borrower (i) fails to cause Owner to deliver notice of default under any Ground Lease to Lender or any other Person designated Restricted Party) accepts from any Guarantor or Guarantor solicits or provides any debtor-in-possession financing to Borrower in writing by Lender the event Borrower (or any Restricted Party) is the subject of a bankruptcy or insolvency proceeding; or (iiix) fails to prevent Owner from amending any covenant contained in Article 6 hereof is violated or modifying any Ground Lease without the prior written consent of Lender, in which event Lender shall have recourse against all of the assets of Borrower including, without limitation, any right, title and interest of Borrower in and to the Collateralbreached.