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77060900v2
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<br /> A-7
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<br />9. Default Interest and Acceleration Premium. In the event that principal or interest
<br />payable on the Borrower Note is not paid when due, there shall be payable on the amount not timely paid,
<br />interest at the Default Rate, to the extent permitted by law. This interest shall accrue at the Default Rate
<br />until the unpaid amount, together with interest thereon, shall have been paid in full. In the event there shall
<br />have occurred an acceleration of the Borrower Note or the Borrower’s obligations under the Borrower Loan
<br />Agreement following an Event of Default on or before the First Optional Call Date, any tender of payment
<br />of any amount necessary to pay the Borrower Note in full shall include the acceleration premium set forth
<br />in Section 2.3(c) of the Borrower Loan Agreement.
<br />10. Costs and Expenses. To the fullest extent allowed by applicable law, Borrower shall pay
<br />all expenses and costs, including, without limitation, out-of-pocket expenses and reasonable fees of
<br />attorneys (including, without limitation, in-house attorneys) and expert witnesses and costs of investigation,
<br />incurred by Funding Lender as a result of any default under this Note or in connection with efforts to collect
<br />any amount due under this Note, or to enforce the provisions of any of the other Borrower Loan Documents,
<br />including those incurred in post-judgment collection efforts and in any bankruptcy proceeding (including
<br />any action for relief from the automatic stay of any bankruptcy proceeding) or judicial or non-judicial
<br />foreclosure proceeding. For purposes of Section 9(f) and this Section 10, attorneys’ out of pocket expenses
<br />shall include, but are not limited to, support staff costs, costs of preparing for litigation, computerized
<br />research, telephone and facsimile transmission expenses, mileage, deposition costs, postage, duplicating,
<br />process service, videotaping and similar costs and expenses.
<br />11. Waivers. Presentment, demand, notice of dishonor, protest, notice of acceleration, notice
<br />of intent to demand or accelerate payment or maturity, presentment for payment, notice of nonpayment,
<br />grace, and diligence in collecting the Indebtedness are waived by Borrower and all endorsers and guarantors
<br />of this Note and all other third party obligors.
<br />12. Governing Law. This Note shall be governed by and enforced in accordance with the
<br />laws of the State, without giving effect to the choice of law principles of the State that would require the
<br />application of the laws of a jurisdiction other than the State.
<br />13. Consent to Jurisdiction and Venue. Borrower agrees that any controversy arising under
<br />or in relation to this Note shall be litigated exclusively in the State. The state and federal courts and
<br />authorities with jurisdiction in the State shall have exclusive jurisdiction over all controversies which shall
<br />arise under or in relation to this Note. Borrower irrevocably consents to service, jurisdiction, and venue of
<br />such courts for any such litigation and waives any other venue to which it might be entitled by virtue of
<br />domicile, habitual residence or otherwise. However, nothing herein is intended to limit Funding Lender’s
<br />right to bring any suit, action or proceeding relating to matters arising under this Note against Borrower or
<br />any of Borrower’s assets in any court of any other jurisdiction.
<br />14. Further Assurances. Borrower shall at any time and from time to time, promptly execute
<br />and deliver all further instruments and documents, and take all further action that may be reasonably
<br />necessary or desirable, or that Funding Lender may reasonably request, in order to protect any right or
<br />interest granted by this Note or to enable Lender to exercise and enforce its rights and remedies under this
<br />Note.
<br />15. Captions. The captions of the sections of this Note are for convenience only and shall be
<br />disregarded in construing this Note.
<br />16. Controlling Person. Borrower hereby acknowledges and agrees that, pursuant to the
<br />terms of the Mortgage: (a) from time to time, Funding Lender may appoint a controlling person to collect
<br />payments, escrows and deposits, to give and to receive notices under this Note or the other Borrower Loan
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