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200603196
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3/4/2012 11:07:21 AM
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4/12/2006 3:46:46 PM
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DEEDS
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200603196
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41I1I011IR�h? <br />contrary contained in this Section 7.4, Lender's right to appear in any action or proceeding shall <br />be limited to such actions and proceedings (i) brought by a Governmental Authority, (ii) those <br />equal to or greater than Fifteen Million and No /100 Dollars ($15,000,000.00) or (iii) commenced <br />after the occurrence and continuance of an Event of Default. <br />Section 7.5 Recovery of Sums Required to Be Paid. Lender shall have the <br />right from time to time to take action to recover any sum or sums which constitute a part of the <br />Debt as the same become due, without regard to whether or not the balance of the Debt shall be <br />due, and without prejudice to the right of Lender thereafter to bring an action of foreclosure, or <br />any other action, for a default or defaults by Borrower existing at the time such earlier action was <br />commenced. <br />Section 7.6 Examination of Books and Records. At reasonable times and <br />upon prior written notice, Lender, its agents, accountants and attorneys shall have the right to <br />examine the records, books, management and other papers of Borrower which reflect upon their <br />financial condition, at the Property or at any office regularly maintained by Borrower where the <br />books and records are located. Lender and its agents shall have the right to make copies and <br />extracts from the foregoing records and other papers. In addition, at reasonable times and upon <br />prior written notice, Lender, its agents, accountants and attorneys shall have the right to examine <br />and audit the books and records of Borrower pertaining to the income, expenses and operation of <br />the Property during reasonable business hours at any office of Borrower where the books and <br />records are located; provided, however, that so long as no Event of Default has occurred, Lender <br />will only examine such books and records no more than two (2) times in any Fiscal Year. This <br />Section 7.6 shall apply throughout the term of the Note and without regard to whether an Event <br />of Default has occurred or is continuing. Borrower and Lender shall each be responsible for the <br />payment of their respective costs associated with the examination of the books and records of <br />Borrower as set forth in this Section 7.6. <br />Section 7.7 _Other Rights, etc. (a) The failure of Lender to insist upon strict <br />performance of any term hereof shall not be deemed to be a waiver of any term of this Security <br />Instrument. Borrower shall not be relieved of Borrower's obligations hereunder by reason of <br />(i) the failure of Lender to comply with any request of Borrower or any guarantor or indemnitor <br />with respect to the Loan to take any action to foreclose this Security Instrument or otherwise <br />enforce any of the provisions hereof or of the Note or the other Loan Documents, (ii) the release, <br />regardless of consideration, of the whole or any part of the Property, or of any person liable for <br />the Debt or any portion thereof or (iii) any agreement or stipulation by Lender extending the time <br />of payment or otherwise modifying or supplementing the terms of the Note, this Security <br />Instrument or the other Loan Documents. <br />(b) Excepting loss or damage caused by the intentional misconduct or gross <br />negligence of Lender or its agents, it is agreed that the risk of loss or damage to the Property is <br />on Borrower, and Lender shall have no liability whatsoever for decline in value of the Property, <br />for failure to maintain the Policies, or for failure to determine whether the insurance in force is <br />adequate as to the amount of risks insured. Possession by Lender shall not be deemed an <br />election of judicial relief if any such possession is requested or obtained with respect to any <br />Property or collateral not in Lender's possession. <br />NYLI134 753776.3 -16- <br />
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