favorable to Borrower or
such Affiliate than those previously disclosed to Lender, then Borrower or such
Affiliate shall provide the initial Lender with a further opportunity to make
the Refinancing Loan on the modified terms in accordance with the timing
provisions set forth above.
(W)
SECONDARY MARKET TRANSACTION.
BORROWER ACKNOWLEDGES THAT LENDER
AND ITS SUCCESSORS AND ASSIGNS MAY (I) SELL THE LOAN TO ONE OR MORE INVESTORS AS
A WHOLE LOAN, (II) PARTICIPATE THE LOAN TO ONE OR MORE INVESTORS, (III) DEPOSIT
THE LOAN WITH A TRUST, WHICH TRUST MAY SELL CERTIFICATES TO INVESTORS EVIDENCING
AN OWNERSHIP INTEREST IN THE TRUST ASSETS, OR (IV) OTHERWISE SELL THE LOAN OR
INTERESTS THEREIN TO INVESTORS (THE TRANSACTIONS REFERRED TO IN CLAUSES (I)
THROUGH (IV) ABOVE ARE HEREINAFTER EACH REFERRED TO AS A "SECONDARY MARKET
TRANSACTION").
BORROWER SHALL COOPERATE WITH LENDER IN ATTEMPTING TO EFFECT OR
EFFECTING ANY SUCH SECONDARY MARKET TRANSACTION AND SHALL COOPERATE IN
ATTEMPTING TO IMPLEMENT OR IMPLEMENTING ALL REQUIREMENTS IMPOSED BY ANY RATING
AGENCY INVOLVED IN ANY SECONDARY MARKET TRANSACTION, INCLUDING BUT NOT LIMITED
TO,
(I) PROVIDING LENDER AN ESTOPPEL CERTIFICATE AND SUCH INFORMATION, LEGAL
OPINIONS AND DOCUMENTS (INCLUDING UPDATED NON-CONSOLIDATION OPINIONS) RELATING
TO BORROWER, THE GUARANTOR, THE MEMBER, THE MORTGAGED PROPERTY AND ANY TENANTS
OF THE MORTGAGED PROPERTY AS LENDER OR THE RATING AGENCIES OR OTHER INTERESTED
PARTIES (AS DEFINED BELOW), MAY REASONABLY REQUEST IN CONNECTION WITH SUCH
SECONDARY MARKET TRANSACTION, INCLUDING, WITHOUT LIMITATION, UPDATED FINANCIAL
INFORMATION, APPRAISALS, MARKET STUDIES, ENVIRONMENTAL REVIEWS (PHASE I'S AND,
IF APPROPRIATE, PHASE II'S), MORTGAGED PROPERTY CONDITION REPORTS AND OTHER DUE
DILIGENCE INVESTIGATIONS TOGETHER WITH APPROPRIATE VERIFICATION OF SUCH UPDATED
INFORMATION AND REPORTS THROUGH LETTERS OF AUDITORS AND CONSULTANTS, AS OF THE
CLOSING DATE OF THE SECONDARY MARKET TRANSACTION,
(II) AMENDING THE LOAN DOCUMENTS AND ORGANIZATIONAL AGREEMENT OF BORROWER,
UPDATING AND/OR RESTATING OFFICER'S CERTIFICATES, TITLE INSURANCE AND OTHER
CLOSING ITEMS, AND PROVIDING UPDATED REPRESENTATIONS AND WARRANTIES IN LOAN
DOCUMENTS AND SUCH ADDITIONAL REPRESENTATIONS AND WARRANTIES AS MAY BE REQUIRED
BY LENDER OR THE RATING AGENCIES, PROVIDED SUCH AMENDMENT OR UPDATE (1) SHALL
NOT CHANGE ANY OF THE FINANCIAL TERMS OF THE LOAN OR RESULT IN A MATERIAL
INCREASE IN THE BORROWER'S OBLIGATIONS OR A MATERIAL DECREASE IN THE BORROWER'S
RIGHTS AND (2) WITH RESPECT TO ANY AMENDMENT OF AN ORGANIZATIONAL AGREEMENT,
MUST HAVE BEEN REQUIRED BY THE RATING AGENCIES,
(III) PARTICIPATING IN BANK, INVESTORS AND RATING AGENCIES' MEETINGS IF
REQUESTED BY LENDER,
72
(IV) UPON LENDER'S REQUEST, AMENDING THE LOAN DOCUMENTS (AND UPDATING AND/OR
RESTATING OFFICER'S CERTIFICATES, TITLE INSURANCE AND OTHER CLOSING ITEMS IN
CONNECTION THEREWITH) TO DIVIDE THE LOAN INTO A FIRST AND A SECOND MORTGAGE
LOAN, OR INTO A ONE OR MORE LOANS SECURED BY MORTGAGES AND BY OWNERSHIP
INTERESTS IN BORROWER IN WHATEVER PROPORTION LENDER DETERMINES,
WHICH SEPARATED
LOANS MAY HAVE DIFFERENT INTEREST RATES AND AMORTIZATION SCHEDULES (BUT WITH
AGGREGATED FINANCIAL TERMS WHICH ARE EQUIVALENT TO THAT OF THE LOAN PRIOR TO
SUCH SEPARATION, INCLUDING, SO LONG AS AN EVENT OF DEFAULT HAS NOT OCCURRED AND
IS NOT CONTINUING,