(C) IS OR ARE FOR ANY REASON HELD TO BE UNENFORCEABLE BY AN INDEMNIFIED PARTY IN
RESPECT OF ANY LIABILITIES (OR ACTION IN RESPECT THEREOF) REFERRED TO THEREIN
WHICH WOULD OTHERWISE BE INDEMNIFIABLE UNDER SECTION 9.2(B) OR (C), THE
INDEMNIFYING PARTY SHALL CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE BY THE
INDEMNIFIED PARTY AS A RESULT OF SUCH LIABILITIES (OR ACTION IN RESPECT
THEREOF); PROVIDED, HOWEVER, THAT NO PERSON GUILTY OF FRAUDULENT
MISREPRESENTATION (WITHIN THE MEANING OF SECTION 11(F) OF THE SECURITIES ACT)
SHALL BE ENTITLED TO CONTRIBUTION FROM ANY PERSON WHO WAS NOT GUILTY OF SUCH
FRAUDULENT MISREPRESENTATION.
IN DETERMINING THE AMOUNT OF CONTRIBUTION TO
WHICH THE RESPECTIVE PARTIES ARE ENTITLED, THE FOLLOWING FACTORS SHALL BE
CONSIDERED: (I) CITIGROUP'S AND BORROWER'S RELATIVE KNOWLEDGE AND ACCESS TO
INFORMATION CONCERNING THE MATTER WITH RESPECT TO WHICH CLAIM WAS ASSERTED; (II)
THE OPPORTUNITY TO CORRECT AND PREVENT ANY STATEMENT OR OMISSION; AND (III) ANY
OTHER EQUITABLE CONSIDERATIONS APPROPRIATE IN THE CIRCUMSTANCES.
LENDER AND
BORROWER HEREBY AGREE THAT IT WOULD NOT BE EQUITABLE IF THE AMOUNT OF SUCH
CONTRIBUTION WERE DETERMINED SOLELY BY PRO RATA OR PER CAPITA ALLOCATION.
(F)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION
9.2, NOTHING CONTAINED IN THIS SECTION 9.2 SHALL IMPOSE LIABILITY UPON BORROWER
FOR ANY LOSSES, CLAIMS, DAMAGES OR LIABILITY ARISING OUT OF OR BASED UPON AN
UNTRUE STATEMENT OF ANY MATERIAL FACT CONTAINED IN ANY STATEMENT, REPORT OR
DOCUMENT PROVIDED TO LENDER ON BEHALF OF BORROWER BY A PARTY WHO IS NOT AN
AFFILIATE OF BORROWER (A "THIRD PARTY REPORT"), UNLESS BORROWER HAD ACTUAL
KNOWLEDGE AT THE TIME BORROWER PROVIDED SUCH STATEMENT, REPORT OR DOCUMENT TO
LENDER THAT SUCH THIRD PARTY REPORT CONTAINS SUCH UNTRUE STATEMENT.
(G)
THE LIABILITIES AND OBLIGATIONS OF BOTH BORROWER AND LENDER UNDER
THIS SECTION 9.2 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE
SATISFACTION AND DISCHARGE OF THE DEBT.
9.3
REALLOCATION OF LOAN AMOUNTS.
(A)
LENDER, WITHOUT IN ANY WAY LIMITING ITS OTHER RIGHTS HEREUNDER, IN
ITS SOLE AND ABSOLUTE DISCRETION, SHALL HAVE THE RIGHT, AT ANY TIME PRIOR TO A
SECURITIZATION, TO REALLOCATE THE AMOUNT OF THE LOAN AND THE MORTGAGE LOAN
(INCLUDING, WITHOUT LIMITATION, THE AMOUNTS AND OBLIGATIONS TO MAKE ADDITIONAL
ADVANCES THEREUNDER) AND/OR ADJUST THE INTEREST RATE RATES THEREON PROVIDED THAT
(I) THE AGGREGATE PRINCIPAL AMOUNT OF THE LOAN AND THE MORTGAGE LOAN IMMEDIATELY
FOLLOWING SUCH REALLOCATION SHALL EQUAL THE OUTSTANDING PRINCIPAL BALANCE OF THE
LOAN AND THE MORTGAGE LOAN IMMEDIATELY PRIOR TO SUCH REALLOCATION, AND (II) THE
WEIGHTED AVERAGE OF THE INTEREST RATE SPREADS FOR THE LOAN AND THE MORTGAGE LOAN
AFTER SUCH REALLOCATION SHALL NOT EXCEED THE WEIGHTED AVERAGE OF THE INTEREST
RATE SPREADS FOR THE LOAN AND THE MORTGAGE LOAN IMMEDIATELY PRIOR TO SUCH
REALLOCATION (WITHOUT GIVING EFFECT TO ANY DEVIATION ATTRIBUTABLE
77
TO THE IMPOSITION OF ANY RATE OF INTEREST AT THE DEFAULT RATE, DEFAULT
PREPAYMENTS PURSUANT TO SECTION 2.3.1 HEREOF OR MANDATORY PREPAYMENTS PURSUANT
TO SECTION 2.3.2 HEREOF), IT BEING UNDERSTOOD AND AGREED THAT SUCH WEIGHTED
AVERAGE OF THE