WITH OR DISCHARGE ANY OBLIGATIONS OF BORROWER UNDER ANY LEASE, OR SHOULD LENDER
BECOME AWARE OF OR BE NOTIFIED BY ANY TENANT UNDER ANY LEASE, OF A FAILURE ON
THE PART OF BORROWER TO SO PERFORM, COMPLY WITH OR DISCHARGE ITS OBLIGATIONS
UNDER SAID LEASE, LENDER MAY, BUT SHALL NOT BE OBLIGATED TO, REMEDY SUCH
FAILURE.
ANY SUCH ACTION BY LENDER SHALL NOT WAIVE OR RELEASE BORROWER FROM ANY
OBLIGATION CONTAINED IN THIS AGREEMENT.
ANY AMOUNT EXPENDED BY LENDER IN SUCH
PERFORMANCE OR ATTEMPTED PERFORMANCE SHALL BE DEEMED TO BE COSTS.
SECTION 7.6
MANAGEMENT
AGREEMENT.
(A) BORROWER COVENANTS AND AGREES AS FOLLOWS:
(I)
BORROWER SHALL DULY PERFORM AND OBSERVE ALL OF THE TERMS AND
CONDITIONS ON ITS PART TO BE PERFORMED AND OBSERVED UNDER THE MANAGEMENT
AGREEMENT.
(II)
BORROWER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO CAUSE
MANAGER TO MANAGE AND OPERATE THE PROPERTY IN ACCORDANCE WITH THE MANAGEMENT
AGREEMENT.
(III)
WITHOUT THE PRIOR WRITTEN CONSENT OF LENDER WHICH SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED, BORROWER WILL NOT TERMINATE, MATERIALLY MODIFY
OR AMEND (OR PERMIT TO BE TERMINATED, MATERIALLY MODIFIED OR AMENDED) THE
MANAGEMENT AGREEMENT.
(B)
WITHOUT LIMITATION OF THE PROVISIONS OF PARAGRAPH (A) ABOVE, IF
THE MANAGEMENT AGREEMENT TERMINATES OR IS TERMINATED, BORROWER SHALL PROMPTLY
ENTER INTO A REPLACEMENT MANAGEMENT AGREEMENT WITH A REPLACEMENT MANAGER, WHICH
MANAGEMENT AGREEMENT AND MANAGER SHALL BE SUBJECT TO LENDER'S PRIOR WRITTEN
APPROVAL (WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR
DELAYED).
BORROWER SHALL ALSO CAUSE SUCH REPLACEMENT MANAGER TO ENTER INTO A
SUBORDINATION AGREEMENT SATISFACTORY TO LENDER.
23
SECTION 7.7
FINANCIAL AND
OTHER REPORTS AND DELIVERIES.
BORROWER SHALL FURNISH (OR CAUSE TO BE FURNISHED)
TO LENDER, THE FOLLOWING FINANCIAL STATEMENTS AND INFORMATION AT THE FOLLOWING
TIMES:
(A)
FINANCIAL STATEMENTS.
WITHIN 90 DAYS OF
THE END OF EACH FISCAL YEAR, COMPLETED, SIGNED AND DATED, INTERNALLY PREPARED,
ANNUAL FINANCIAL STATEMENTS (INCLUDING INCOME STATEMENTS AND BALANCE SHEETS AND
SUCH VERIFICATIONS, SUPPORTING SCHEDULES OR ADDITIONAL STATEMENTS NECESSARY TO
SUBSTANTIATE ANY INFORMATION CONTAINED IN SUCH FINANCIAL STATEMENTS), FOR
BORROWER, GUARANTOR AND THE PROPERTY, CERTIFIED BY AN OFFICER OF BORROWER OR
GUARANTOR, AS APPLICABLE, AS BEING ACCURATE. WITHIN 30 DAYS OF THE END OF EACH
MONTH, AN INTERNALLY PREPARED STATEMENT OF INCOME AND EXPENSES FOR THE PROJECT
INDICATING SOURCES AND USES OF FUNDS, AND SUCH OTHER STATEMENTS AS LENDER MAY
REASONABLY REQUIRE, CERTIFIED BY AN OFFICER OF BORROWER OR GUARANTOR, AS
APPLICABLE, AS BEING COMPLETE, TRUE AND CORRECT IN ALL MATERIAL RESPECTS.
(B)
REQUIRED NOTICES.
BORROWER SHALL PROMPTLY
NOTIFY LENDER IN WRITING OF THE OCCURRENCE OF:
(I) ANY EVENT OF DEFAULT OR
DEFAULT; (II) ANY EVENT WHICH MATERIALLY AND ADVERSELY AFFECTS THE ABILITY OF
BORROWER, ANY BORROWER PARTY OR GUARANTOR TO PERFORM ANY OF ITS RESPECTIVE
SECURED OBLIGATIONS HEREUNDER OR UNDER ANY OF THE LOAN DOCUMENTS; (III) ANY
EVENT WHICH ADVERSELY AFFECTS THE PRIORITY OF LENDER'S FIRST LIEN ON THE
PROPERTY; (IV) ANY JUDGMENTS, LITIGATION OR OTHER PROCEEDING FILED OR THREATENED
AGAINST ANY BORROWER, GUARANTOR OR THE PROPERTY; (V) ANY MATERIAL CHANGE IN THE
FINANCIAL CONDITION OF