RENTS;
(VI)
THE RIGHT, WITHOUT RESTRICTING ANY OTHER RIGHTS OF LENDER UNDER
THIS AGREEMENT (INCLUDING ANY SIMILAR RIGHT), TO APPROVE ANY OPERATING BUDGET
AND/OR CAPITAL BUDGET OF BORROWER;
(VII)
THE RIGHT, WITHOUT RESTRICTING ANY OTHER RIGHTS OF LENDER UNDER
THIS AGREEMENT (INCLUDING ANY SIMILAR RIGHT), TO APPROVE ANY ACQUISITION BY
BORROWER OF ANY OTHER SIGNIFICANT PROPERTY (OTHER THAN PERSONAL PROPERTY
REQUIRED FOR THE DAY TO DAY OPERATION OF THE PROPERTY); AND
(VIII)
THE RIGHT, WITHOUT RESTRICTING ANY OTHER RIGHTS OF LENDER UNDER
THIS AGREEMENT (INCLUDING ANY SIMILAR RIGHT), TO RESTRICT THE TRANSFER OF
INTERESTS IN BORROWER HELD BY ITS MEMBERS, AND THE RIGHT TO RESTRICT THE
TRANSFER OF INTERESTS IN SUCH MEMBER, EXCEPT FOR ANY TRANSFER THAT IS A
PERMITTED TRANSFER.
The rights described above may be exercised directly or indirectly by any Person
that owns substantially all of the ownership interests in Lender.
78
10.23
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED AND DELIVERED SHALL BE AN ORIGINAL,
BUT ALL OF WHICH SHALL TOGETHER CONSTITUTE ONE AND THE SAME INSTRUMENT.
10.24
YIELD MAINTENANCE PREMIUM. BORROWER ACKNOWLEDGES THAT (A) LENDER IS
MAKING THE LOAN IN CONSIDERATION OF THE RECEIPT BY LENDER OF ALL INTEREST AND
OTHER BENEFITS INTENDED TO BE CONFERRED BY THE LOAN DOCUMENTS AND (B) IF
PAYMENTS OF PRINCIPAL ARE MADE TO LENDER PRIOR TO THE STATED MATURITY DATE, FOR
ANY REASON WHATSOEVER, WHETHER VOLUNTARY, AS A RESULT OF LENDER'S ACCELERATION
OF THE LOAN AFTER AN EVENT OF DEFAULT, BY OPERATION OF LAW OR OTHERWISE, LENDER
WILL NOT RECEIVE ALL SUCH INTEREST AND OTHER BENEFITS AND MAY, IN ADDITION,
INCUR COSTS. FOR THESE REASONS, AND TO INDUCE LENDER TO MAKE THE LOAN, BORROWER
AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2.2.3,
SECTION 2.3.2,
SECTION 2.3.4 AND SECTION 7.4.2 HEREOF, ALL PREPAYMENTS, IF ANY, WHETHER
VOLUNTARY OR INVOLUNTARY, WILL BE ACCOMPANIED BY THE YIELD MAINTENANCE PREMIUM.
SUCH YIELD MAINTENANCE PREMIUM SHALL BE REQUIRED WHETHER PAYMENT IS MADE BY
BORROWER, BY A PERSON ON BEHALF OF BORROWER, OR BY THE PURCHASER AT ANY
FORECLOSURE SALE, AND MAY BE INCLUDED IN ANY BID BY LENDER AT SUCH SALE.
BORROWER FURTHER ACKNOWLEDGES THAT (A) IT IS A KNOWLEDGEABLE REAL ESTATE
DEVELOPER AND/OR INVESTOR; (B) IT FULLY UNDERSTANDS THE EFFECT OF THE PROVISIONS
OF THIS SECTION 10.24, AS WELL AS THE OTHER PROVISIONS OF THE LOAN DOCUMENTS;
(C) THE MAKING OF THE LOAN BY LENDER AT THE INTEREST RATE AND OTHER TERMS SET
FORTH IN THE LOAN DOCUMENTS ARE SUFFICIENT CONSIDERATION FOR BORROWER'S
OBLIGATION TO PAY A YIELD MAINTENANCE PREMIUM (IF REQUIRED); AND (D) LENDER
WOULD NOT MAKE THE LOAN ON THE TERMS SET FORTH HEREIN WITHOUT THE INCLUSION OF
SUCH PROVISIONS. BORROWER ALSO ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT LIMITING THE RIGHT OF PREPAYMENT AND PROVIDING FOR THE PAYMENT OF THE
YIELD MAINTENANCE PREMIUM AND OTHER CHARGES SPECIFIED HEREIN WERE INDEPENDENTLY
NEGOTIATED AND BARGAINED FOR, AND CONSTITUTE A SPECIFIC MATERIAL PART OF THE
CONSIDERATION GIVEN BY BORROWER TO LENDER