BE, SHALL REMAIN
SOLELY RESPONSIBLE FOR THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER.
(J)
NOTWITHSTANDING ANY OTHER PROVISION SET FORTH IN THIS AGREEMENT,
LENDER OR ANY CO-LENDER MAY AT ANY TIME CREATE A SECURITY INTEREST IN ALL OR ANY
PORTION OF ITS RIGHTS UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION,
AMOUNTS OWING TO IT IN FAVOR OF ANY FEDERAL RESERVE BANK IN ACCORDANCE WITH
REGULATION A OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM), PROVIDED
THAT NO SUCH SECURITY INTEREST OR THE EXERCISE BY THE SECURED PARTY OF ANY OF
ITS RIGHTS THEREUNDER SHALL RELEASE LENDER OR CO-LENDER FROM ITS FUNDING
OBLIGATIONS HEREUNDER.
136
9.7.3
Cooperation in Syndication.
(A)
BORROWER AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO ASSIST
LENDER IN COMPLETING SYNDICATION SATISFACTORY TO LENDER. SUCH ASSISTANCE SHALL
INCLUDE (I) DIRECT CONTACT BETWEEN SENIOR MANAGEMENT AND ADVISORS OF BORROWER
AND THE PROPOSED CO-LENDERS, (II) ASSISTANCE IN THE PREPARATION OF A
CONFIDENTIAL INFORMATION MEMORANDUM AND OTHER MARKETING MATERIALS TO BE USED IN
CONNECTION WITH THE SYNDICATION, (III) THE HOSTING, WITH LENDER, OF ONE (1) OR
MORE MEETINGS OF PROSPECTIVE CO-LENDERS OR WITH THE RATING AGENCIES, (IV) THE
DELIVERY OF APPRAISALS REASONABLY SATISFACTORY TO LENDER IF REQUIRED, AND (V)
WORKING WITH LENDER TO PROCURE A RATING FOR THE LOAN BY THE RATING AGENCIES.
(B)
LENDER SHALL MANAGE ALL ASPECTS OF THE SYNDICATION OF THE LOAN,
INCLUDING DECISIONS AS TO THE SELECTION OF INSTITUTIONS TO BE APPROACHED AND
WHEN THEY WILL BE APPROACHED, WHEN THEIR COMMITMENTS WILL BE ACCEPTED, WHICH
INSTITUTIONS WILL PARTICIPATE, THE ALLOCATIONS OF THE COMMITMENTS AMONG THE
CO-LENDERS AND THE AMOUNT AND DISTRIBUTION OF FEES AMONG THE CO-LENDERS. TO
ASSIST LENDER IN ITS SYNDICATION EFFORTS, BORROWER AGREES PROMPTLY TO PREPARE
AND PROVIDE TO LENDER ALL INFORMATION WITH RESPECT TO BORROWER, MANAGER, AND THE
PROPERTIES CONTEMPLATED HEREBY, INCLUDING ALL FINANCIAL INFORMATION AND
PROJECTIONS (THE "PROJECTIONS"), AS LENDER MAY REASONABLY REQUEST IN CONNECTION
WITH THE SYNDICATION OF THE LOAN. BORROWER HEREBY REPRESENTS AND COVENANTS THAT
(I) ALL INFORMATION OTHER THAN THE PROJECTIONS (THE "INFORMATION") THAT HAS BEEN
OR WILL BE MADE AVAILABLE TO LENDER BY BORROWER OR ANY OF ITS REPRESENTATIVES IS
OR WILL BE, TO BORROWER'S ACTUAL KNOWLEDGE, WHEN FURNISHED, COMPLETE AND CORRECT
IN ALL MATERIAL RESPECTS AND DOES NOT OR WILL NOT, TO BORROWER'S ACTUAL
KNOWLEDGE, WHEN FURNISHED, CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR
OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS
CONTAINED THEREIN NOT MATERIALLY MISLEADING IN LIGHT OF THE CIRCUMSTANCES UNDER
WHICH SUCH STATEMENTS ARE MADE AND (II) THE PROJECTIONS THAT HAVE BEEN OR WILL
BE MADE AVAILABLE TO LENDER BY BORROWER OR ANY OF ITS REPRESENTATIVES HAVE BEEN
OR WILL BE PREPARED IN GOOD FAITH BASED UPON REASONABLE ASSUMPTIONS. BORROWER
UNDERSTANDS THAT IN ARRANGING AND SYNDICATING THE LOAN, LENDER, THE CO-LENDERS
AND, IF APPLICABLE, THE RATING AGENCIES, MAY USE AND RELY ON THE INFORMATION AND
PROJECTIONS WITHOUT INDEPENDENT VERIFICATION THEREOF.
(C)
IF REQUIRED IN CONNECTION WITH THE SYNDICATION, BORROWER HEREBY
AGREES TO:
(I)
AMEND THE LOAN DOCUMENTS TO