OF INVESTIGATION; PROVIDED, HOWEVER, IF THE DEFENDANTS IN
ANY SUCH ACTION INCLUDE BOTH BORROWER AND AN INDEMNIFIED PARTY, AND ANY
INDEMNIFIED PARTY SHALL HAVE REASONABLY CONCLUDED THAT THERE ARE ANY LEGAL
DEFENSES AVAILABLE TO IT AND/OR OTHER
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INDEMNIFIED PARTIES THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE AVAILABLE TO
BORROWER, THEN THE INDEMNIFIED PARTY OR PARTIES SHALL HAVE THE RIGHT TO SELECT
SEPARATE COUNSEL TO ASSERT SUCH LEGAL DEFENSES AND TO OTHERWISE PARTICIPATE IN
THE DEFENSE OF SUCH ACTION ON BEHALF OF SUCH INDEMNIFIED PARTY OR PARTIES.
BORROWER SHALL NOT BE LIABLE FOR THE EXPENSES OF MORE THAN ONE SEPARATE COUNSEL
UNLESS THERE ARE LEGAL DEFENSES AVAILABLE TO IT THAT ARE DIFFERENT FROM OR
ADDITIONAL TO THOSE AVAILABLE TO ANOTHER INDEMNIFIED PARTY.
9.1.6
CONTRIBUTION. IN ORDER TO PROVIDE FOR JUST AND EQUITABLE
CONTRIBUTION IN CIRCUMSTANCES IN WHICH THE INDEMNITY AGREEMENT PROVIDED FOR IN
SECTION 9.1.3 ABOVE OR SECTION 9.1.4 ABOVE IS 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 9.1.3 ABOVE OR SECTION 9.1.4 ABOVE, BORROWER 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 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) THE LEHMAN GROUP'S AND BORROWER'S RELATIVE KNOWLEDGE AND ACCESS
TO INFORMATION CONCERNING THE MATTER WITH RESPECT TO WHICH THE 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 MAY NOT BE EQUITABLE IF THE AMOUNT OF
SUCH CONTRIBUTION WERE DETERMINED BY PRO RATA OR PER CAPITA ALLOCATION.
9.1.7
SEVERANCE OF LOAN. LENDER SHALL HAVE THE RIGHT, AT ANY TIME (WHETHER
PRIOR TO, IN CONNECTION WITH, OR AFTER ANY SECONDARY MARKET TRANSACTION), WITH
RESPECT TO ALL OR ANY PORTION OF THE LOAN, TO MODIFY, SPLIT AND/OR SEVER ALL OR
ANY PORTION OF THE LOAN AS HEREINAFTER PROVIDED. WITHOUT LIMITING THE FOREGOING,
LENDER MAY (I) CAUSE THE NOTE AND THE SECURITY INSTRUMENT TO BE SPLIT INTO A
FIRST AND SECOND MORTGAGE LOAN, (II) CREATE ONE MORE SENIOR AND SUBORDINATE
NOTES (I.E., AN A/B OR A/B/C STRUCTURE), (III) CREATE MULTIPLE COMPONENTS OF THE
NOTE OR NOTES (AND ALLOCATE OR REALLOCATE THE PRINCIPAL BALANCE OF THE LOAN
AMONG SUCH COMPONENTS) OR (IV) OTHERWISE SEVER THE LOAN INTO TWO (2) OR MORE
LOANS SECURED BY MORTGAGES AND BY A PLEDGE OF PARTNERSHIP OR MEMBERSHIP
INTERESTS (DIRECTLY OR INDIRECTLY) IN BORROWER (I.E., A SENIOR LOAN/MEZZANINE
LOAN STRUCTURE), IN EACH SUCH CASE, IN WHATEVER PROPORTION AND WHATEVER PRIORITY
LENDER DETERMINES; PROVIDED, HOWEVER, IN EACH SUCH INSTANCE THE OUTSTANDING