OF DEFAULT
HAS OCCURRED AND IS CONTINUING, (II) ANY SUB-MANAGER SHALL BECOME INSOLVENT,
(III) ANY SUB-MANAGER IS IN DEFAULT UNDER THE TERMS OF THE RELATED
SUB-MANAGEMENT AGREEMENT BEYOND ANY APPLICABLE GRACE OR CURE PERIOD OR (IV) ANY
SUB-MANAGER IS NOT MANAGING THE PROPERTY IN ACCORDANCE WITH THE MANAGEMENT
PRACTICES OF NATIONALLY RECOGNIZED MANAGEMENT COMPANIES MANAGING SIMILAR
PROPERTIES IN LOCATIONS COMPARABLE TO THOSE OF THE PROPERTY, THEN, IN THE CASE
OF (I), (II), (III) OR (IV), BORROWER SHALL, AT THE REQUEST OF LENDER, CAUSE
PROPERTY MANAGER TO TERMINATE THE SUB-MANAGEMENT AGREEMENT AND REPLACE THE
SUB-MANAGER WITH A MANAGER REASONABLY APPROVED BY LENDER ON TERMS AND CONDITIONS
REASONABLY SATISFACTORY TO LENDER, IT BEING UNDERSTOOD AND AGREED THAT THE
MANAGEMENT FEE FOR SUCH REPLACEMENT SUB-MANAGER SHALL NOT EXCEED THEN PREVAILING
MARKET RATES, AS DETERMINED BY LENDER.
SECTION 9.6
SERVICER.
AT THE OPTION OF LENDER, THE LOAN MAY BE
SERVICED BY A SERVICER/TRUSTEE (THE "SERVICER") SELECTED BY LENDER AND LENDER
MAY DELEGATE ALL OR ANY PORTION OF ITS RESPONSIBILITIES UNDER THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS TO THE SERVICER PURSUANT TO A SERVICING AGREEMENT (THE
"SERVICING AGREEMENT") BETWEEN LENDER AND SERVICER.
LENDER SHALL BE RESPONSIBLE
FOR ANY SET-UP FEES OR ANY OTHER COSTS RELATING TO OR ARISING UNDER THE
SERVICING AGREEMENT.
SECTION 9.7
RESIZING.
BORROWER COVENANTS AND AGREES THAT IN
CONNECTION WITH ANY SECURITIZATION OF THE LOAN, UPON LENDER'S REQUEST BORROWER
SHALL DELIVER ONE OR MORE NEW COMPONENT NOTES TO REPLACE THE ORIGINAL NOTE OR
MODIFY THE ORIGINAL NOTE TO REFLECT MULTIPLE COMPONENTS OF THE LOAN OR CREATE
ONE OR MORE MEZZANINE LOANS (INCLUDING AMENDING BORROWER'S ORGANIZATIONAL
STRUCTURE TO PROVIDE FOR ONE OR MORE MEZZANINE BORROWERS) (EACH A "RESIZING
EVENT").
LENDER AGREES THAT SUCH NEW NOTES OR MODIFIED NOTE OR MEZZANINE NOTES
SHALL AFTER THE RESIZING EVENT HAVE THE SAME WEIGHTED AVERAGE COUPON AS THE
ORIGINAL NOTE PRIOR TO SUCH RESIZING EVENT, EXCEPT THAT THE APPLICATION OF
PRINCIPAL TO SUCH NEW NOTES OR MODIFIED NOTE OR MEZZANINE NOTES FOLLOWING AN
EVENT OF DEFAULT OR AS A RESULT OF A CASUALTY OR CONDEMNATION MAY CAUSE THE
WEIGHTED AVERAGE SPREAD OF SUCH NEW NOTES OR MODIFIED NOTE OR MEZZANINE NOTES TO
CHANGE.
SUBJECT TO THE FOREGOING, LENDER SHALL HAVE THE RIGHT TO APPLY
PRINCIPAL, INTEREST RATES AND AMORTIZATION OF THE LOAN BETWEEN SUCH NEW
COMPONENTS AND/OR MEZZANINE LOANS IN A MANNER SPECIFIED BY LENDER IN ITS SOLE
DISCRETION SUCH THAT THE PRICING AND MARKETABILITY OF THE SECURITIES AND THE
SIZE OF EACH CLASS OF SECURITIES AND THE RATING ASSIGNED TO EACH SUCH CLASS BY
THE RATING AGENCIES SHALL PROVIDE THE MOST FAVORABLE RATING LEVELS AND ACHIEVE
THE OPTIMUM BOND EXECUTION FOR THE LOAN.
IN CONNECTION WITH ANY RESIZING EVENT,
BORROWER COVENANTS AND AGREES TO MODIFY
86
THE CASH MANAGEMENT AGREEMENT WITH RESPECT TO THE NEWLY CREATED COMPONENTS
AND/OR MEZZANINE LOANS.
ARTICLE 10 - MISCELLANEOUS
SECTION 10.1
SURVIVAL.
THIS AGREEMENT AND ALL COVENANTS, AGREEMENTS,
REPRESENTATIONS AND WARRANTIES MADE HEREIN AND IN THE CERTIFICATES DELIVERED
PURSUANT HERETO SHALL SURVIVE THE MODIFICATION THE LOAN AND THE EXECUTION