Common use of Replacement of Manager Clause in Contracts

Replacement of Manager. Senior Lender and each Junior Lender hereby consents to each Junior Lenders’ right, under the circumstances set forth in the applicable Junior Loan Documents, to cause the termination of any manager of the Premises, and the exercise of such right (and any manager replacement right exercised pursuant to the terms of this Section 13 below) shall not (in and of itself) permit the Senior Lender and the other Junior Lenders to declare an Event of Default as defined in the Senior Loan Documents or the applicable Junior Loan Documents or take any Enforcement Action or Equity Collateral Enforcement Action. In the event Senior Lender and one or more Junior Lenders shall have the right to so terminate any manager of the Premises, and Senior Lender shall fail to exercise such rights within ten (10) Business days, the most junior Junior Lender may exercise such rights without the consent of the Senior Lender; provided such exercise by the most Junior Lender may be superseded by any subsequent exercise of such rights by Senior Lender in accordance to the Senior Loan Documents. If Senor Lender does not exercise its superior termination rights, the most junior Junior Lender, having terminated the property manager of the Premises pursuant to the most junior Junior Loan Documents, shall have the right to select, or cause the selection, of a replacement property manager, asset manager or leasing agent, as applicable, for the Premises, which replacement manager, asset manager and/or leasing agent for the Premises, shall be subject to Senior Lender’s reasonable approval and the applicable terms and provisions of the Senior Loan Documents, and, if any Certificates are then outstanding, be subject to a Rating Agency Confirmation, and shall be a Qualified Manager. Notwithstanding anything in this Section 13 to the contrary, if an Event of Default under the Senior Loan then is continuing, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, as applicable, which is a Qualified Manager and, if any Certificates are then outstanding, is subject to a Rating Agency Confirmation, whether or not a new manager or agent was retained by the most junior Junior Lender; provided, Senior Lender agrees to consult with the Junior Lenders prior to making any such election; and provided, further, that without the consent of each of the Junior Lenders which is not an Affiliate of the Senior Borrower, the Senior Lender shall not engage a replacement manager that is an Affiliate of the Senior Borrower.

Replacement of Manager. Senior Subject to the prior written consent of the Mortgage Lender and each Junior other Mezzanine Lenders, Lender hereby consents to each Junior Lenders’ right, under the circumstances set forth in the applicable Junior Loan Documents, to cause the termination of any manager of the Premises, and the exercise of such right (and any manager replacement right exercised pursuant to the terms of this Section 13 below) shall not (in and of itself) permit the Senior Lender and the other Junior Lenders to declare an Event of Default as defined in the Senior Loan Documents or the applicable Junior Loan Documents or take any Enforcement Action or Equity Collateral Enforcement Action. In the event Senior Lender and one or more Junior Lenders shall have the right to so terminate require Borrower to cause Owner to replace any Manager with a Person chosen by Owner and approved by Lender (provided, that such approval may be conditioned upon Borrower delivering a Rating Agency Confirmation as to such new manager and management agreement) upon the occurrence of any one or more of the Premisesfollowing events: (i) at any time after the Loan has been accelerated in accordance with Section 8.2.1, the Maturity Date has occurred, or Lender has commenced a foreclosure action, applied for the appointment of a receiver or exercised other similar remedies with respect to an Event of Default, (ii) if such Manager shall be in material default under the Management Agreement that causes a material adverse effect (in Lender’s reasonable determination) on Owner or its business, net cash flow, operations or financial condition or on the Properties then under management pursuant to such Management Agreement or the use, value, operation or net cash flow thereof or Owner’s interest therein, and Senior such default is not cured within thirty (30) days after notice thereof from Lender to Borrower; provided if such default cannot reasonably be cured within such thirty (30) day period Borrower shall have an additional sixty (60) days in which to cure such default so long as it is diligently pursuing a cure, (iii) if such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding (provided that if such proceeding is involuntary, the same shall not have been dismissed within ninety (90) days of filing), or (iv) if at any time such Manager has engaged in gross negligence, fraud, willful misconduct or misappropriation of funds (unless such gross negligence, fraud, willful misconduct or misappropriation of funds is the act of any employee of such Manager other than a senior officer or other individual controlling such Manager and within thirty (30) days of such Manager’s discovery thereof, such employee has been terminated by that Manager and that Manager has fully compensated Borrower for any losses suffered as a result of such gross negligence, fraud, willful misconduct or misappropriation of funds). Subject to the prior written consent of the Mortgage Lender and other Mezzanine Lenders, Lender shall fail have the right to exercise such rights replace the applicable Manager with any Scheduled Manager if (A) Borrower is not diligendy working (or causing Owner to diligently work) to replace the Manager and keeping Lender reasonably apprised of its efforts in connection therewith, and Borrower fails to commence and continue thereafter (or cause Owner to commence and continue thereafter) diligently working to replace the applicable Manager within ten (10) Business daysDays after written notice from Lender, or (B) Borrower fails to actually replace (or cause Owner to actually replace) the most junior Junior Manager with a Manager approved by Lender may exercise such rights without within one hundred twenty (120) days after Lender’s initial notice to Borrower to replace the consent of the Senior LenderManager; provided that if Borrower is unable to replace the Manager within such exercise by the most Junior Lender may be superseded by any subsequent exercise of such rights by Senior Lender in accordance one hundred twenty (120) days and Borrower continues to the Senior Loan Documents. If Senor Lender does not exercise its superior termination rightsdiligently work to do so, the most junior Junior Lender, having terminated the property manager of the Premises pursuant to the most junior Junior Loan Documents, then Borrower shall have up to an additional sixty (60) days to replace the right to select, or cause the selection, of a replacement property manager, asset manager or leasing agent, as applicable, for the Premises, which replacement manager, asset manager and/or leasing agent for the Premises, shall be subject to Senior Lender’s reasonable approval and the applicable terms and provisions of the Senior Loan Documents, and, if any Certificates are then outstanding, be subject to a Rating Agency Confirmation, and shall be a Qualified Manager. Notwithstanding anything in this Section 13 to the contrary, if an Event of Default under the Senior Loan then is continuing, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, as applicable, which is a Qualified Manager and, if any Certificates are then outstanding, is subject to a Rating Agency Confirmation, whether or not a new manager or agent was retained by the most junior Junior Lender; provided, Senior Lender agrees to consult with the Junior Lenders prior to making any such election; and provided, further, that without the consent of each of the Junior Lenders which is not an Affiliate of the Senior Borrower, the Senior Lender shall not engage a replacement manager that is an Affiliate of the Senior Borrower.

Replacement of Manager. Senior Lender and each Junior Lender hereby consents shall have the right to each Junior Lenders’ right, require Borrower to cause Mortgage Borrower to replace the Manager with a Qualifying Manager upon the occurrence of any one or more of the following events: (a) at any time following the occurrence of an Event of Default and/or (b) if Manager shall be in default under the circumstances set forth Management Agreement beyond any applicable notice and cure period or if at any time the Manager has engaged in gross negligence, fraud or willful misconduct and/or (c) if a receiver, liquidator or trustee shall be appointed for any Manager or any Manager shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Manager, or if any proceeding for the dissolution or liquidation of any Manager shall be instituted. The rights of Lender (x) to approve any change in the applicable Junior Loan DocumentsManagement Agreement, (y) to cause the termination of the existing Manager and (z) to cause the designation of a replacement manager shall be subject to any manager rights of the PremisesMortgage Lender under the Mortgage Loan Documents to take such actions, and the exercise satisfaction of such right any conditions set forth in the Mortgage Loan Documents relating to the appointment of a replacement manager. Borrower shall provide to Lender any request for action relating to a Manager, including for any change in the Management Agreement, any termination of the existing Manager or approval of a replacement manager, within five (and any manager replacement right exercised 5) Business Days of Borrower’s receipt thereof pursuant to the terms provisions of this Section 13 below) shall not (in and of itself) permit the Senior Lender and the other Junior Lenders to declare an Event of Default as defined in the Senior Loan Documents or the applicable Junior Loan Documents or take any Enforcement Action or Equity Collateral Enforcement ActionMortgage Borrower Company Agreement. In the event Senior Lender and one or more Junior Lenders Mortgage Lender shall have the right to so terminate any manager of the Premises, and Senior Lender shall fail to exercise such rights within ten (10) Business daysrelating to a Manager under the Loan Documents and Mortgage Loan Documents, the most junior Junior respectively, Lender may exercise such rights without the consent of the Senior Lender; provided such exercise by the most Junior Lender may be superseded by any subsequent exercise of such rights by Senior Lender in accordance rights, but only to the Senior Loan Documents. If Senor Lender does not exercise its superior termination rights, extent the most junior Junior Lender, having terminated the property manager of the Premises pursuant to the most junior Junior Loan Documents, shall have the right to select, or cause the selection, of a replacement property manager, asset manager or leasing agent, as applicable, for the Premises, which replacement manager, asset manager and/or leasing agent for the Premises, shall be subject to Senior Lender’s reasonable approval and the applicable terms and provisions of the Senior Loan Documents, and, if any Certificates are then outstanding, be subject to a Rating Agency Confirmation, and shall be a Qualified Manager. Notwithstanding anything in this Section 13 to the contrary, if an Event of Default under the Senior Loan then is continuing, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, as applicable, which is a Qualified Manager and, if any Certificates are then outstanding, is subject to a Rating Agency Confirmation, whether or not a new manager or agent was retained by the most junior Junior Lender; provided, Senior Lender agrees to consult with the Junior Lenders prior to making any such election; and provided, further, that without the consent of each of the Junior Lenders which is not an Affiliate of the Senior Borrower, the Senior Mortgage Lender shall not engage a replacement manager that is an Affiliate of the Senior Borrowerhave previously exercised (or be deemed to have exercised) such rights.

Replacement of Manager. Senior Lender and each Junior Lender hereby consents to each Junior Lenders’ ' right, under the circumstances set forth in the applicable Junior Loan Documents, to cause the termination of any manager of the Premises, and the exercise of such right (and any manager replacement right exercised pursuant to the terms of this Section 13 below) shall not (in and of itself) permit the Senior Lender and the other Junior Lenders to declare an Event of Default as defined in the Senior Loan Documents or the applicable Junior Loan Documents or take any Enforcement Action or Equity Collateral Enforcement Action. In the event Senior Lender and one or more Junior Lenders shall have the right to so terminate any manager of the Premises, and Senior Lender shall fail to exercise such rights within ten (10) Business days, the most junior Junior Lender may exercise such rights without the consent of the Senior Lender; provided such exercise by the most Junior Lender may be superseded by any subsequent exercise of such rights by Senior Lender in accordance to the Senior Loan Documents. If Senor Lender does not exercise its superior termination rights, the most junior Junior Lender, having terminated the property manager of the Premises pursuant to the most junior Junior Loan Documents, shall have the right to select, or cause the selection, of a replacement property manager, asset manager or leasing agent, as applicable, for the Premises, which replacement manager, asset manager and/or leasing agent for the Premises, shall be subject to Senior Lender’s 's reasonable approval and the applicable terms and provisions of the Senior Loan Documents, and, if any Certificates are then outstanding, be subject to a Rating Agency Confirmation, and shall be a Qualified Manager. Notwithstanding anything in this Section 13 to the contrary, if an Event of Default under the Senior Loan then is continuing, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, as applicable, which is a Qualified Manager and, if any Certificates are then outstanding, is subject to a Rating Agency Confirmation, whether or not a new manager or agent was retained by the most junior Junior Lender; provided, Senior Lender agrees to consult with the Junior Lenders prior to making any such election; and provided, further, that without the consent of each of the Junior Lenders which is not an Affiliate of the Senior Borrower, the Senior Lender shall not engage a replacement manager that is an Affiliate of the Senior Borrower.

Replacement of Manager. Senior Lender and In each Junior Lender hereby consents case to each Junior Lenders’ right, the extent permitted under the circumstances set forth in the applicable Junior Loan DocumentsAssignment of Management Agreement, to cause the termination of any manager of the Premises, and the exercise of such right (and any manager replacement right exercised pursuant to the terms of this Section 13 below) shall not (in and of itself) permit the Senior Lender and the other Junior Lenders to declare an Event of Default as defined in the Senior Loan Documents or the applicable Junior Loan Documents or take any Enforcement Action or Equity Collateral Enforcement Action. In the event Senior Lender and one or more Junior Lenders shall have the right to so terminate require Borrower or Leasehold Pledgor to cause Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, Owner and Operating Lessee to replace any Manager with a Person chosen by Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, Owner or Operating Lessee and, unless such replacement is a Qualified Manager, approved by Lender (provided, that such approval of a Manager that is not a Qualified Manager may be conditioned upon Borrower or Leasehold Pledgor delivering a Rating Agency Confirmation as to such new manager and management agreement) upon the occurrence of any one or more of the Premisesfollowing events: (i) at any time after the Loan has been accelerated in accordance with Section 8.2.1, the Maturity Date has occurred, or Lender has commenced a foreclosure action, applied for the appointment of a receiver or exercised other similar remedies with respect to an Event of Default, (ii) if such Manager shall be in material default under the Management Agreement that causes a material adverse effect (in Lender’s reasonable determination) on Mezzanine A Borrower, Mezzanine A Leasehold Pledgor, Owner, Operating Lessee or their respective business, net cash flow, operations or financial condition or on the Properties then under management pursuant to such Management Agreement or the use, value, operation or net cash flow thereof or Mezzanine A Borrower’s, Mezzanine A Leasehold Pledgor’s, Owner’s or Operating Lessee’s interest therein or Lender’s security therein, and Senior such default is not cured within thirty (30) days after notice thereof from Lender to Borrower; provided if such default cannot reasonably be cured within such thirty (30) day period Borrower shall have an additional sixty (60) days in which to cure such default so long as it is diligently pursuing a cure, (iii) if such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding (provided that if such proceeding is involuntary, the same shall not have been dismissed within ninety (90) days of filing), or (iv) if at any time such Manager has engaged in gross negligence, fraud, willful misconduct or misappropriation of funds (unless such gross negligence, fraud, willful misconduct or misappropriation of funds is the act of any employee of such Manager other than a senior officer or other individual controlling such Manager and within thirty (30) days of such Manager’s discovery thereof, such employee has been terminated by that Manager and that Manager has fully compensated Borrower or Leasehold Pledgor, as applicable, for any losses suffered as a result of such gross negligence, fraud, willful misconduct or misappropriation of funds). If any of the events listed in subparagraphs (i)-(iv) above has occurred, subject to the prior written consent of the Mortgage Lender and Mezzanine A Lender, Lender shall fail have the right to exercise such rights replace the applicable Manager with any Qualified Manager if (A) neither Borrower nor Leasehold Pledgor is diligently working (or causing Owner or Operating Lessee to diligently work) to replace the Manager and keeping Lender reasonably apprised of its efforts in connection therewith, and Borrower or Leasehold Pledgor fails to commence and continue thereafter (or cause Owner or Operating Lessee to commence and continue thereafter) diligently working to replace the applicable Manager within ten (10) Business daysDays after written notice from Lender, or (B) Borrower or Leasehold Pledgor fails to actually replace (or cause Owner or Operating Lessee to actually replace) the most junior Junior Manager with a Manager approved by Lender may exercise such rights without within one hundred twenty (120) days after Lender’s initial notice to Borrower or Leasehold Pledgor to replace the consent of the Senior LenderManager; provided that if Borrower or Leasehold Pledgor is unable to replace the Manager within such exercise by the most Junior Lender may be superseded by any subsequent exercise of such rights by Senior Lender in accordance one hundred twenty (120) days and Borrower or Leasehold Pledgor continues to the Senior Loan Documents. If Senor Lender does not exercise its superior termination rightsdiligently work to do so, the most junior Junior Lender, having terminated the property manager of the Premises pursuant to the most junior Junior Loan Documents, then Borrower and Leasehold Pledgor shall have up to an additional sixty (60) days to replace the right to select, or cause the selection, of a replacement property manager, asset manager or leasing agent, as applicable, for the Premises, which replacement manager, asset manager and/or leasing agent for the Premises, shall be subject to Senior Lender’s reasonable approval and the applicable terms and provisions of the Senior Loan Documents, and, if any Certificates are then outstanding, be subject to a Rating Agency Confirmation, and shall be a Qualified Manager. Notwithstanding anything in this Section 13 to the contrary, if an Event of Default under the Senior Loan then is continuing, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, as applicable, which is a Qualified Manager and, if any Certificates are then outstanding, is subject to a Rating Agency Confirmation, whether or not a new manager or agent was retained by the most junior Junior Lender; provided, Senior Lender agrees to consult with the Junior Lenders prior to making any such election; and provided, further, that without the consent of each of the Junior Lenders which is not an Affiliate of the Senior Borrower, the Senior Lender shall not engage a replacement manager that is an Affiliate of the Senior Borrower.

Replacement of Manager. Senior Lender and In each Junior Lender hereby consents case to each Junior Lenders’ right, the extent permitted under the circumstances set forth in the applicable Junior Loan DocumentsAssignment of Management Agreement, to cause the termination of any manager of the Premises, and the exercise of such right (and any manager replacement right exercised pursuant to the terms of this Section 13 below) shall not (in and of itself) permit the Senior Lender and the other Junior Lenders to declare an Event of Default as defined in the Senior Loan Documents or the applicable Junior Loan Documents or take any Enforcement Action or Equity Collateral Enforcement Action. In the event Senior Lender and one or more Junior Lenders shall have the right to so terminate require Borrower or Leasehold Pledgor to cause Owner and Operating Lessee to replace any Manager with a Person chosen by Owner or Operating Lessee and, unless such replacement is a Qualified Manager, approved by Lender (provided, that such approval of a Manager that is not a Qualified Manager may be conditioned upon Borrower or Leasehold Pledgor delivering a Rating Agency Confirmation as to such new manager and management agreement) upon the occurrence of any one or more of the Premisesfollowing events: (i) at any time after the Loan has been accelerated in accordance with Section 8.2.1, the Maturity Date has occurred, or Lender has commenced a foreclosure action, applied for the appointment of a receiver or exercised other similar remedies with respect to an Event of Default, (ii) if such Manager shall be in material default under the Management Agreement that causes a material adverse effect (in Lender’s reasonable determination) on Owner, Operating Lessee or their respective business, net cash flow, operations or financial condition or on the Properties then under management pursuant to such Management Agreement or the use, value, operation or net cash flow thereof or Owner’s or Operating Lessee’s interest therein or Lender’s security therein, and Senior such default is not cured within thirty (30) days after notice thereof from Lender to Borrower; provided if such default cannot reasonably be cured within such thirty (30) day period Borrower shall have an additional sixty (60) days in which to cure such default so long as it is diligently pursuing a cure, (iii) if such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding (provided that if such proceeding is involuntary, the same shall not have been dismissed within ninety (90) days of filing), or (iv) if at any time such Manager has engaged in gross negligence, fraud, willful misconduct or misappropriation of funds (unless such gross negligence, fraud, willful misconduct or misappropriation of funds is the act of any employee of such Manager other than a senior officer or other individual controlling such Manager and within thirty (30) days of such Manager’s discovery thereof, such employee has been terminated by that Manager and that Manager has fully compensated Borrower or Leasehold Pledgor, as applicable, for any losses suffered as a result of such gross negligence, fraud, willful misconduct or misappropriation of funds). Subject to the prior written consent of the Mortgage Lender, Lender shall fail have the right to exercise such rights replace the applicable Manager with any Qualified Manager if (A) neither Borrower nor Leasehold Pledgor is diligently working (or causing Owner or Operating Lessee to diligently work) to replace the Manager and keeping Lender reasonably apprised of its efforts in connection therewith, and Borrower or Leasehold Pledgor fails to commence and continue thereafter (or cause Owner or Operating Lessee to commence and continue thereafter) diligently working to replace the applicable Manager within ten (10) Business daysDays after written notice from Lender, or (B) Borrower or Leasehold Pledgor fails to actually replace (or cause Owner or Operating Lessee to actually replace) the most junior Junior Manager with a Manager approved by Lender may exercise such rights without within one hundred twenty (120) days after Lender’s initial notice to Borrower or Leasehold Pledgor to replace the consent of the Senior LenderManager; provided that if Borrower or Leasehold Pledgor is unable to replace the Manager within such exercise by the most Junior Lender may be superseded by any subsequent exercise of such rights by Senior Lender in accordance one hundred twenty (120) days and Borrower or Leasehold Pledgor continues to the Senior Loan Documents. If Senor Lender does not exercise its superior termination rightsdiligently work to do so, the most junior Junior Lender, having terminated the property manager of the Premises pursuant to the most junior Junior Loan Documents, then Borrower and Leasehold Pledgor shall have up to an additional sixty (60) days to replace the right to select, or cause the selection, of a replacement property manager, asset manager or leasing agent, as applicable, for the Premises, which replacement manager, asset manager and/or leasing agent for the Premises, shall be subject to Senior Lender’s reasonable approval and the applicable terms and provisions of the Senior Loan Documents, and, if any Certificates are then outstanding, be subject to a Rating Agency Confirmation, and shall be a Qualified Manager. Notwithstanding anything in this Section 13 to the contrary, if an Event of Default under the Senior Loan then is continuing, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, as applicable, which is a Qualified Manager and, if any Certificates are then outstanding, is subject to a Rating Agency Confirmation, whether or not a new manager or agent was retained by the most junior Junior Lender; provided, Senior Lender agrees to consult with the Junior Lenders prior to making any such election; and provided, further, that without the consent of each of the Junior Lenders which is not an Affiliate of the Senior Borrower, the Senior Lender shall not engage a replacement manager that is an Affiliate of the Senior Borrower.

Replacement of Manager. Senior Lender and In each Junior Lender hereby consents case to each Junior Lenders’ right, the extent permitted under the circumstances set forth in the applicable Junior Loan DocumentsAssignment of Management Agreement, to cause the termination of any manager of the Premises, and the exercise of such right (and any manager replacement right exercised pursuant to the terms of this Section 13 below) shall not (in and of itself) permit the Senior Lender and the other Junior Lenders to declare an Event of Default as defined in the Senior Loan Documents or the applicable Junior Loan Documents or take any Enforcement Action or Equity Collateral Enforcement Action. In the event Senior Lender and one or more Junior Lenders shall have the right to so terminate require Borrower and Operating Lessee to replace any Manager with a Person chosen by Borrower or Operating Lessee and, unless such replacement is a Qualified Manager, approved by Lender (provided, that such approval of a Manager that is not a Qualified Manager may be conditioned upon Borrower or Operating Lessee delivering a Rating Agency Confirmation as to such new manager and management agreement) upon the occurrence of any one or more of the Premisesfollowing events: (i) at any time after the Loan has been accelerated in accordance with Section 8.2.1, the Maturity Date has occurred, or Lender has commenced a foreclosure action, applied for the appointment of a receiver or exercised other similar remedies with respect to an Event of Default, (ii) if such Manager shall be in material default under the Management Agreement that causes a material adverse effect (in Lender’s reasonable determination) on Borrower, Operating Lessee or their respective business, net cash flow, operations or financial condition or on the Properties then under management pursuant to such Management Agreement or the use, value, operation or net cash flow thereof or Borrower’s or Operating Lessee’s interest therein or Lender’s security therein, and Senior such default is not cured within thirty (30) days after notice thereof from Lender to Borrower; provided if such default cannot reasonably be cured within such thirty (30) day period Borrower shall have an additional sixty (60) days in which to cure such default so long as it is diligently pursuing a cure, (iii) if such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding (provided that if such proceeding is involuntary, the same shall not have been dismissed within ninety (90) days of filing), or (iv) if at any time such Manager has engaged in gross negligence, fraud, willful misconduct or misappropriation of funds (unless such gross negligence, fraud, willful misconduct or misappropriation of funds is the act of any employee of such Manager other than a senior officer or other individual controlling such Manager and within thirty (30) days of such Manager’s discovery thereof, such employee has been terminated by that Manager and that Manager has fully compensated Borrower or Operating Lessee, as applicable, for any losses suffered as a result of such gross negligence, fraud, willful misconduct or misappropriation of funds). Lender shall fail have the right to exercise such rights replace the applicable Manager with any Qualified Manager if (A) neither Borrower nor Operating Lessee is diligently working to replace the Manager and keeping Lender reasonably apprised of its efforts in connection therewith, and Borrower or Operating Lessee fails to commence and continue thereafter diligently working to replace the applicable Manager within ten (10) Business daysDays after written notice from Lender, or (B) Borrower or Operating Lessee fails to actually replace the most junior Junior Manager with a Manager approved by Lender may exercise such rights without within one hundred twenty (120) days after Lender’s initial notice to Borrower or Operating Lessee to replace the consent of the Senior LenderManager; provided that if Borrower or Operating Lessee is unable to replace the Manager within such exercise by the most Junior Lender may be superseded by any subsequent exercise of such rights by Senior Lender in accordance one hundred twenty (120) days and Borrower or Operating Lessee continues to the Senior Loan Documents. If Senor Lender does not exercise its superior termination rightsdiligently work to do so, the most junior Junior Lender, having terminated the property manager of the Premises pursuant to the most junior Junior Loan Documents, then Borrower and Operating Lessee shall have up to an additional sixty (60) days to replace the right to select, or cause the selection, of a replacement property manager, asset manager or leasing agent, as applicable, for the Premises, which replacement manager, asset manager and/or leasing agent for the Premises, shall be subject to Senior Lender’s reasonable approval and the applicable terms and provisions of the Senior Loan Documents, and, if any Certificates are then outstanding, be subject to a Rating Agency Confirmation, and shall be a Qualified Manager. Notwithstanding anything in this Section 13 to the contrary, if an Event of Default under the Senior Loan then is continuing, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, as applicable, which is a Qualified Manager and, if any Certificates are then outstanding, is subject to a Rating Agency Confirmation, whether or not a new manager or agent was retained by the most junior Junior Lender; provided, Senior Lender agrees to consult with the Junior Lenders prior to making any such election; and provided, further, that without the consent of each of the Junior Lenders which is not an Affiliate of the Senior Borrower, the Senior Lender shall not engage a replacement manager that is an Affiliate of the Senior Borrower.

Replacement of Manager. Senior Lender shall have the right to require Borrowers to cause Operating Lessee to replace the Manager of one or more or all of the Properties with a Person chosen by Borrowers and/or Operating Lessee and each Junior approved by Lender hereby consents upon the occurrence of any one or more of the following events so long as the applicable Borrower or Operating Lessee has the contractual right to each Junior Lenders’ right, do so under the circumstances set forth in related Management Agreement or the applicable Junior Loan Documents, to cause the termination of any manager of the Premises, and the exercise of such right (and any manager replacement right exercised pursuant Manager has consented or agreed to the terms of this Section 13 below7.3 in the related Assignment of Management Agreement: (a) shall not (in and at any time following the occurrence of itself) permit the Senior Lender and the other Junior Lenders to declare an Event of Default Default, (b) if at any time the Debt Service Coverage Ratio falls below 1.05 to 1.0 (the “Manager Termination Ratio”) for any three (3) consecutive calendar quarters, calculated on a Pool 2 trailing twelve (12) month basis, as defined determined by Lender in its sole discretion, (c) if such Manager shall be in default under any material term or covenant set forth in its Management Agreement beyond any applicable notice and cure period, (d) if such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding and, in the Senior Loan Documents case of an involuntary bankruptcy or insolvency proceeding, such bankruptcy or insolvency proceeding is not dismissed within forty-five (45) days after the applicable Junior Loan Documents filing thereof, or take (e) if at any Enforcement Action time such Manager has engaged in gross negligence, fraud or Equity Collateral Enforcement Action. In willful misconduct; provided that if Lender requests that Borrowers cause Operating Lessee to replace the event Senior Lender and Manager of one or more Junior Lenders or all of the Properties as a result of the occurrence of the Manager Termination Ratio under the preceding clause (b), then Borrowers may engage an independent third party consultant, at their sole cost and expense, to review the performance of the Manager or Managers to be replaced and Borrowers shall have the right only be required to so terminate any manager of the Premisesreplace said existing Manager or Managers if, and Senior Lender shall fail to exercise such rights within ten thirty (1030) Business days, the most junior Junior Lender may exercise such rights without the consent of the Senior Lender; provided such exercise by the most Junior Lender may be superseded by any subsequent exercise of such rights by Senior Lender in accordance to the Senior Loan Documents. If Senor Lender does not exercise its superior termination rights, the most junior Junior Lender, having terminated the property manager of the Premises pursuant to the most junior Junior Loan Documents, shall have the right to select, or cause the selection, of a replacement property manager, asset manager or leasing agent, as applicable, for the Premises, which replacement manager, asset manager and/or leasing agent for the Premises, shall be subject to Senior days after Lender’s reasonable approval and the applicable terms and provisions of the Senior Loan Documentsrequest, and, if any Certificates are then outstanding, said independent third party consultant also concludes that said existing Manager or Managers should be subject to a Rating Agency Confirmation, and shall be a Qualified Manager. Notwithstanding anything in this Section 13 to the contrary, if an Event of Default under the Senior Loan then is continuing, Senior Lender shall have the sole right to select any replacement manager, asset manager and/or leasing agent, as applicable, which is a Qualified Manager and, if any Certificates are then outstanding, is subject to a Rating Agency Confirmation, whether or not a new manager or agent was retained by the most junior Junior Lender; provided, Senior Lender agrees to consult with the Junior Lenders prior to making any such election; and provided, further, that without the consent of each of the Junior Lenders which is not an Affiliate of the Senior Borrower, the Senior Lender shall not engage a replacement manager that is an Affiliate of the Senior Borrowerreplaced.