11.14
MANAGEMENT OF UNITS AND UNIT LEASES.
(A)
EACH BORROWER COVENANTS TO MAINTAIN OR
CAUSE THE MANAGEMENT OF THE UNITS AND THE UNIT LEASES TO BE MAINTAINED IN
CONFORMITY WITH STANDARD INDUSTRY PRACTICES FOR THE SAME TYPE OF UNITS AND
LEASES AS THE UNITS AND UNIT LEASES, RESPECTIVELY, AND IN A MANNER AT LEAST
EQUAL IN QUALITY TO THE MANAGEMENT EACH BORROWER PROVIDES FOR ITS UNITS AND UNIT
LEASES.
(B)
THE UNITS AND THE UNIT LEASES SHALL
INITIALLY BE MANAGED BY ARCMS, (TOGETHER WITH ANY REPLACEMENT MANAGER APPROVED
BY THE LENDER, THE "MANAGER").
(C)
IN THE EVENT A BORROWER OR ITS AFFILIATE IS
MANAGING THE UNITS AND THE UNIT LEASES, SUCH BORROWER SHALL PERMIT THE LENDER
FROM TIME TO TIME TO INSPECT SUCH BORROWER'S OR
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ITS AFFILIATE'S MANAGING FACILITIES, AS THE CASE MAY BE, FOR THE PURPOSE OF
SATISFYING THE LENDER THAT SUCH BORROWER OR ITS AFFILIATE, AS THE CASE MAY BE,
HAS THE ABILITY TO MANAGE THE UNITS AND THE UNIT LEASES AS PROVIDED IN THIS
AGREEMENT.
SECTION 11.15
PERIODIC DUE DILIGENCE REVIEW.
THE
BORROWERS ACKNOWLEDGE THAT THE LENDER HAS THE RIGHT TO PERFORM CONTINUING DUE
DILIGENCE REVIEWS WITH RESPECT TO THE UNITS AND UNIT LEASES AND THE MANNER IN
WHICH THE ARE MANAGED, FOR PURPOSES OF VERIFYING COMPLIANCE WITH THE
REPRESENTATIONS, WARRANTIES AND SPECIFICATIONS MADE HEREUNDER, OR OTHERWISE, AND
THE BORROWERS AGREE THAT, UNLESS A DEFAULT HAS OCCURRED (IN WHICH CASE NO NOTICE
IS REQUIRED), UPON REASONABLE (BUT NO LESS THAN ONE (1) BUSINESS DAY'S) PRIOR
NOTICE TO THE BORROWERS, THE LENDER OR ITS AUTHORIZED REPRESENTATIVES SHALL BE
PERMITTED DURING NORMAL BUSINESS HOURS TO EXAMINE, INSPECT, AND MAKE COPIES AND
EXTRACTS OF, THE TRANSMITTAL PACKAGE AND ANY AND ALL DOCUMENTS, RECORDS,
AGREEMENTS, INSTRUMENTS OR INFORMATION RELATING TO SUCH UNITS AND UNIT LEASES IN
THE POSSESSION OR UNDER THE CONTROL OF THE BORROWERS AND/OR THE CUSTODIAN.
THE
BORROWERS ALSO SHALL MAKE AVAILABLE TO THE LENDER A KNOWLEDGEABLE FINANCIAL OR
ACCOUNTING OFFICER FOR THE PURPOSE OF ANSWERING QUESTIONS RESPECTING THE
TRANSMITTAL PACKAGE AND THE UNITS AND UNIT LEASES.
THE BORROWERS FURTHER AGREE
THAT THE BORROWERS SHALL REIMBURSE THE LENDER FOR ANY AND ALL OUT-OF-POCKET
COSTS AND EXPENSES INCURRED BY THE LENDER IN CONNECTION WITH THE LENDER'S
ACTIVITIES PURSUANT TO THIS SECTION AS AND WHEN BILLED BY THE LENDER.
SECTION 11.16
SET-OFF.
IN ADDITION TO ANY RIGHTS AND
REMEDIES OF THE LENDER PROVIDED BY THIS AGREEMENT AND BY LAW, THE LENDER SHALL
HAVE THE RIGHT, WITHOUT PRIOR NOTICE TO THE BORROWERS, ANY SUCH NOTICE BEING
EXPRESSLY WAIVED BY THE BORROWERS TO THE EXTENT PERMITTED BY APPLICABLE LAW,
UPON ANY AMOUNT BECOMING DUE AND PAYABLE BY THE BORROWERS HEREUNDER (WHETHER AT
THE STATED MATURITY, BY ACCELERATION OR OTHERWISE) TO SET-OFF AND APPROPRIATE
AND APPLY AGAINST SUCH AMOUNT ANY AND ALL DEPOSITS (GENERAL OR SPECIAL, TIME OR
DEMAND, PROVISIONAL OR FINAL), IN ANY CURRENCY, AND ANY OTHER CREDITS,
INDEBTEDNESS OR CLAIMS, IN ANY CURRENCY, IN EACH CASE WHETHER DIRECT OR
INDIRECT, ABSOLUTE OR CONTINGENT, MATURED OR UNMATURED, AT ANY TIME HELD