Note 2007 0910 Estabrook Senior Housing LP (2)

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3.7 RELATIONSHIP OF THE PARTIES. The relationship of Borrower and Agency under this Note is solely that of borrower and lender, and the loan evidenced by this Note and secured by the Agency Deed of Trust will in no manner make Agency the partner or joint venturer of Borrower. 3.8 TIME IS OF THE ESSENCE. Time is of the essence with respect to every provision of this Note. 3.9 NONRECOURSE. Except as expressly provided in this Section 3.9, neither Borrower nor its partners shall have personal liability for payment of the principal of, or interest on, this Note, and the sole recourse of Agency with respect to the payment of the principal of, and interest on, this Note shall be to the Project. the Property and any other collateral held by Agency as security for this Note; provided however, nothing contained in the foregoing limitation of liability shall: (A) impair the enforcement against all such security for the Agency Loan of all the rights and remedies of the Agency under the Agency Deed of Trust and any financing statements Agency files in connection with the Agency Loan as each of the foregoing may be amended, modified, or restated from time to time; (B) impair the right of Agency to bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Agency to enforce and realize upon the Agency Deed of Trust, the interest in the Project and the Property created thereby and any other collateral given to Agency in connection with the indebtedness evidenced hereby and to name the Borrower as paiTy defendant in any such action; (C) be deemed in any way to impair the right of the Agency to assert the unpaid principal amount of the Agency Loan as a demand for money within the meaning of Section 43 ] .70 of the California Code of Civil Procedure or any successor provision thereto; (D) constitute a waiver of any right which Agency may have under any bankruptcy law to file a claim for the full amount of the indebtedness owed to Agency hereunder or to require that the Project and the Property shall continue to secure all of the indebtedness owed to Agency hereunder in accordance with this Note and the Agency Deed of Trust; or (E) limit or restrict the ability of Agency to seek or obtain a judgment against Borrower to enforce against Borrower and its general partners to: (I) recover under Sections 3.14 3. l 7 9.1, 9.2, 1 l . l , l 2. I and l 2. l 9 of the OPA (pertaining to Borrower's indemnification obligations), or (2) recover from Borrower and its general partners compensatory damages as well as other costs and expenses incurred by Agency (including without limitation attorney's fees and expenses) arising as a result of the occurrence of any of the following: (a) any fraud or material misrepresentation on the part of the Borrower, any general partner thereof, or any officer, director or authorized representative of Borrower or any general partner thereof in connection with the request for or creation of the Agency Loan, or in any Agency Document, 9~C,227-4