BORROWER MAY RESUBMIT ITS WRITTEN REQUEST TO LENDER
(THE "SECOND NOTICE").
THE SECOND NOTICE SHALL MAKE REFERENCE TO THE FIRST
NOTICE AND SHALL BEAR THE FOLLOWING LEGEND IN CAPITAL LETTERS:
"LENDER'S FAILURE TO RESPOND TO THIS REQUEST FOR APPROVAL WITHIN TEN (10)
BUSINESS DAYS FOLLOWING RECEIPT SHALL BE DEEMED TO CONSTITUTE LENDER'S CONSENT
TO THE OPERATING BUDGET DESCRIBED HEREIN."
69
If Lender does not approve or disapprove the proposed Operating Budget within
ten (10) Business Days after Lender shall have received Borrower's Second
Notice, Lender shall be deemed to have approved the proposed Operating Budget.
(X) TOGETHER WITH THE FINANCIAL STATEMENTS, RENT ROLLS, OPERATING STATEMENTS AND
OTHER DOCUMENTS AND INFORMATION PROVIDED TO LENDER BY OR ON BEHALF OF BORROWER
UNDER THIS SECTION, BORROWER ALSO SHALL DELIVER TO LENDER A CERTIFICATION IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO LENDER, EXECUTED ON BEHALF OF
BORROWER BY ITS CHIEF EXECUTIVE OFFICER OR CHIEF FINANCIAL OFFICER (OR BY THE
INDIVIDUAL GUARANTOR IF THE GUARANTOR IS AN INDIVIDUAL) STATING THAT, TO SUCH
OFFICER'S OR INDIVIDUAL'S KNOWLEDGE, SUCH FINANCIAL STATEMENTS, RENT ROLLS,
OPERATING STATEMENTS AND OTHER DOCUMENTS AND INFORMATION ARE TRUE AND COMPLETE
IN ALL MATERIAL RESPECTS.
(XI)
FOR PURPOSES OF THIS SECTION 5.1(R), ALL OF THE FINANCIAL
REPORTING REQUIREMENTS MAY BE SATISFIED BY THE BORROWER POSTING THE REQUIRED
DELIVERIES ON A SECURE WEBSITE REASONABLY SATISFACTORY TO THE LENDER AND SENDING
TO THE LENDER AND ITS SERVICER EACH MONTH AN ELECTRONIC MAIL COMMUNICATION
NOTIFYING THE LENDER AND ITS SERVICER OF THE LINKAGE TO SUCH WEBSITE; PROVIDED
THAT NOTWITHSTANDING THE FOREGOING, IN THE EVENT THE LENDER INCLUDES THE LOAN IN
A SECONDARY MARKET TRANSACTION IN WHICH SECURITIES ARE ISSUED OR OTHERWISE
CHANGES THE IDENTITY OF ITS SERVICER TO A PERSON OTHER THAN THE INITIAL SERVICER
IDENTIFIED TO THE BORROWER AS OF THE CLOSING DATE, THEN THE LENDER MAY REQUIRE
THAT SUCH DELIVERIES BE MADE TO LENDER AND ITS SERVICER IN HARD COPY AND ON
DISKETTE OR THROUGH ELECTRONIC MAIL (INCLUDING MICROSOFT EXCEL FORMAT), IN FORM
AND SUBSTANCE REASONABLY ACCEPTABLE TO LENDER.
(S)
OPERATION OF MORTGAGED PROPERTY.
BORROWER SHALL CAUSE THE
OPERATION OF EACH MORTGAGED PROPERTY TO BE CONDUCTED AT ALL TIMES IN A MANNER
CONSISTENT WITH AT LEAST THE LEVEL OF OPERATION OF SUCH MORTGAGED PROPERTY AS OF
THE CLOSING DATE, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING:
(I) TO MAINTAIN OR CAUSE TO BE MAINTAINED THE STANDARD OF EACH MORTGAGED
PROPERTY AT ALL TIMES AT A LEVEL NOT LOWER THAN THAT MAINTAINED BY PRUDENT
MANAGERS OF SIMILAR FACILITIES OR LAND IN THE REGION WHERE THE MORTGAGED
PROPERTY IS LOCATED;
(II) TO OPERATE OR CAUSE TO BE OPERATED EACH MORTGAGED PROPERTY IN A PRUDENT
MANNER IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH APPLICABLE LEGAL REQUIREMENTS
AND INSURANCE REQUIREMENTS RELATING THERETO AND MAINTAIN OR CAUSE TO BE
MAINTAINED ALL MATERIAL LICENSES, PERMITS AND ANY OTHER AGREEMENTS NECESSARY FOR
THE CONTINUED USE AND OPERATION OF EACH MORTGAGED PROPERTY; AND
(III) TO MAINTAIN OR CAUSE TO BE MAINTAINED SUFFICIENT INVENTORY AND EQUIPMENT
OF TYPES AND QUANTITIES AT EACH MORTGAGED PROPERTY TO