In consideration of the amendments contained herein, each of the Borrower and REIT Guarantor hereby waives and releases the Lenders, the Administrative Agent and the Issuing Bank from any and all claims and defenses, known or unknown, existing on the date hereof with respect to the Credit Agreement and the other Loan Documents and the transactions contemplated thereby (collectively, the “Claims”); provided , however , the Claims shall not include any claims or defenses that are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence, willful misconduct or bad faith of any Lender, the Administrative Agent or the Issuing Bank.