FUNDS TO PAY SUCH AMOUNTS ARE AVAILABLE IN THE
TAX AND INSURANCE SUBACCOUNT AND LENDER FAILED TO PAY SAME OR HAS ELECTED NOT TO
PAY THE SAME PURSUANT TO SECTION 3.3 OR (B) RENTS ARE INSUFFICIENT TO YIELD
SUFFICIENT FUNDS TO PAY SUCH AMOUNTS; (G) THE BREACH OF ANY REPRESENTATION,
WARRANTY, COVENANT OR INDEMNIFICATION IN ANY LOAN DOCUMENT CONCERNING
ENVIRONMENTAL LAWS OR HAZARDOUS SUBSTANCES, INCLUDING SECTIONS 4.21 AND 5.8, AND
CLAUSES (VIII) THROUGH (XI) OF SECTION 5.30; (H) ANY REPRESENTATION OR WARRANTY
MADE BY BORROWER IN SECTION 4.1 SHALL BE FALSE OR MISLEADING IN ANY MATERIAL
RESPECT AS OF THE DATE MADE, OR THE BREACH OF THE COVENANTS SET FORTH IN SECTION
5.13 (OTHER THAN A BREACH OF ANY OF THE COVENANTS DESCRIBED IN CLAUSES (X) AND
(XXI) (WITH RESPECT TO UNSECURED TRADE PAYABLES) SET FORTH IN THE DEFINITION OF
"SPECIAL PURPOSE BANKRUPTCY REMOTE ENTITY" ON SCHEDULE 5, IF THE SAME OCCURS AS
A RESULT OF THE ECONOMIC PERFORMANCE OF THE PROPERTY); (I) BORROWER OR GUARANTOR
OR ANY OF THEIR DIRECT OR INDIRECT AFFILIATES TAKING ANY ACTION OR MAKING ANY
OMISSION INTENDED OR REASONABLY LIKELY TO HINDER, DELAY, IMPAIR OR PREVENT
LENDER IN OR FROM ENFORCING ANY AND ALL OF ITS RIGHTS AND REMEDIES UNDER OR
PURSUANT TO THE LOAN DOCUMENTS OR AT LAW OR IN EQUITY (UNLESS THE SAME IS
BROUGHT IN GOOD FAITH AND IS DETERMINED IN FAVOR OF BORROWER OR GUARANTOR
PURSUANT TO A FINAL, NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT
JURISDICTION); (J) THE TERMINATION OF THE MANAGEMENT AGREEMENT OR THE REMOVAL OF
THE THEN-CURRENT MANAGER AS PROPERTY MANAGER THEREUNDER WITHOUT LENDER'S
CONSENT; OR (K) BORROWER'S ACTION OR INACTION WHICH RESULTS IN THE TERMINATION
OF THE GROUND LEASE, BORROWER'S FAILURE TO EXERCISE ALL OF ITS OPTIONS CURRENTLY
SET FORTH IN THE GROUND LEASE TO EXTEND THE TERM OF THE GROUND LEASE TO AT LEAST
DECEMBER 31, 2021 OR BORROWER'S FAILURE TO OBTAIN AN EXTENSION OF THE GROUND
LEASE TO A TERM OF AT LEAST TEN (10) YEARS BEYOND THE STATED MATURITY DATE;
UNLESS IN ANY CASE, BORROWER OBTAINS REPLACEMENT PARKING FACILITIES THAT, (A) IF
SUBJECT TO AN AGREEMENT, LEASE OR OTHERWISE, GRANT RIGHTS TO SUCH REPLACEMENT
PARKING FACILITIES FOR A TERM OF AT LEAST TEN (10) YEARS BEYOND THE STATED
MATURITY DATE (THE "REPLACEMENT PARKING FACILITIES AGREEMENT"), AND (B) ARE
SUFFICIENT TO ENABLE THE PROPERTY TO COMPLY WITH APPLICABLE LEGAL REQUIREMENTS
(INCLUDING, WITHOUT LIMITATION, ZONING REQUIREMENTS), EACH OF (A) AND (B) AS
DETERMINED BY LENDER IN ITS REASONABLE DISCRETION.
BORROWER AND GUARANTOR SHALL
BE RELEASED FROM ANY FURTHER LIABILITY PURSUANT TO CLAUSE (K) ABOVE
79
IN THE EVENT THAT THE REPLACEMENT PARKING FACILITIES AND THE REPLACEMENT PARKING
FACILITIES AGREEMENT ARE SUFFICIENT TO ENABLE THE PROPERTY TO COMPLY WITH
APPLICABLE LEGAL REQUIREMENTS (INCLUDING, WITHOUT LIMITATION, ZONING
REQUIREMENTS) AND ARE OTHERWISE SATISFACTORY TO LENDER IN ITS REASONABLE
DISCRETION.
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS, (A) LENDER SHALL NOT BE DEEMED TO
HAVE WAIVED ANY RIGHT WHICH LENDER MAY