DATE HEREOF, THEN THE CREDITOR SHALL BE DEEMED TO HAVE MADE AN INTRA-OBLIGOR
LOAN TO DEBTOR IN THE AMOUNT OF SUCH PROCEEDS SO APPLIED (THE "INTRA-OBLIGOR
LOAN AMOUNT"). SUCH INTRA-OBLIGOR LOAN SHALL BE DEEMED TO BE MADE ON A
NON-RECOURSE BASIS AND SHALL BE REPAID OUT OF THE FUTURE PROCEEDS OF THE PROJECT
OR OTHER COLLATERAL OWNED BY THE DEBTOR, TOGETHER WITH INTEREST THEREON AT A
RATE TO BE AGREED UPON FROM TIME TO TIME BY EACH BORROWER.
(C)
ALL INTRA-OBLIGOR LOANS DEEMED TO BE MADE UNDER THIS AGREEMENT
SHALL BE EVIDENCED BY THIS AGREEMENT, SHALL BE AN OBLIGATION OF THE DEBTOR WHICH
OWES SUCH INTRA-OBLIGOR LOAN SOLELY BY ITS EXECUTION OF THIS AGREEMENT AND SHALL
NOT BE EVIDENCED BY ANY SEPARATE INSTRUMENT. EACH PARTY HEREBY WAIVES
PRESENTMENT, NOTICE OF DISHONOR, PROTEST AND NOTICE OF NON-PAYMENT OR
NON-PERFORMANCE WITH RESPECT TO EACH INTRA-OBLIGOR LOAN FOR WHICH IT IS LIABLE
UNDER THIS AGREEMENT. INTEREST AND PRINCIPAL ON INTRA-OBLIGOR LOANS SHALL BE
PAID SOLELY OUT OF NET PROCEEDS FROM THE PROJECT OR OTHER PROPERTY OWNED BY THE
DEBTOR AND SHALL BE SUBJECT IN ALL CASES TO THE TERMS AND CONDITIONS OF THE LOAN
DOCUMENTS, AND THE PAYMENTS FROM SUCH SOURCES SHALL BE THE SOLE AND EXCLUSIVE
REMEDY AVAILABLE TO ANY CREDITOR DURING THE TERM OF THE LOAN. EACH SUCH PAYMENT
OF PRINCIPAL OR INTEREST ON INTRA-OBLIGOR LOANS SHALL BE SUBORDINATE AND SUBJECT
TO THE PRIOR PAYMENT OF ALL AMOUNTS PAYABLE UNDER THE LOAN DOCUMENTS. TO THE
EXTENT SUCH SOURCES OF PAYMENT ARE INSUFFICIENT TO PAY INTEREST AND PRINCIPAL ON
ANY INTRA-OBLIGOR LOAN, THE CREDITOR OWED SUCH INTRA-OBLIGOR LOAN SHALL NOT HAVE
ANY CLAIM AGAINST THE DEBTOR WHICH OWES SUCH INTRA-OBLIGOR LOAN FOR SUCH AMOUNTS
OR LIEN ON OR SECURITY INTEREST IN ANY OF THE ASSETS OF SUCH DEBTOR AND NO
FURTHER OR ADDITIONAL RECOURSE SHALL BE AVAILABLE AGAINST THE DEBTOR. ALL
PAYMENTS RECEIVED ON ACCOUNT OF ANY INTRA-OBLIGOR LOAN UNDER THIS AGREEMENT
SHALL BE CREDITED FIRST TO INTEREST, THEN TO PRINCIPAL. ACCRUED BUT UNPAID
INTEREST SHALL NOT BE COMPOUNDED.
37
Section 2.05
Representations and Warranties as to the Projects.
Borrower represents and warrants with respect to the Projects as of the date
hereof as follows (each of which representations shall, as the context requires,
refer to each entity comprising Borrower and to each Project and shall be deemed
made by each such Borrower with respect to each such Project):
(A)
LIEN PRIORITY. THE MORTGAGES ARE A VALID AND ENFORCEABLE FIRST
LIENS ON THE PROJECTS, FREE AND CLEAR OF ALL ENCUMBRANCES AND LIENS HAVING
PRIORITY OVER THE LIENS OF THE MORTGAGES, EXCEPT FOR THE ITEMS SET FORTH AS
EXCEPTIONS TO OR SUBORDINATE MATTERS IN THE TITLE INSURANCE POLICIES INSURING
THE LIENS OF THE MORTGAGES, NONE OF WHICH, INDIVIDUALLY OR IN THE AGGREGATE,
MATERIALLY INTERFERE WITH THE BENEFITS OF THE SECURITY INTENDED TO BE PROVIDED
BY THE MORTGAGES, MATERIALLY AFFECT THE VALUE OR MARKETABILITY OF ANY PROJECT,
MATERIALLY IMPAIR THE USE OR OPERATION OF ANY PROJECT FOR THE USE CURRENTLY
BEING MADE THEREOF