CONNECTION WITH THE MORTGAGE LOAN, INCLUDING, WITHOUT
LIMITATION, ANY NOTICE BY THE MORTGAGE LENDER TO MORTGAGE BORROWER OF ANY
DEFAULT BY MORTGAGE BORROWER IN THE PERFORMANCE OR OBSERVANCE OF ANY OF THE
TERMS, COVENANTS OR CONDITIONS OF THE MORTGAGE LOAN DOCUMENTS ON THE PART OF
MORTGAGE BORROWER TO BE PERFORMED OR OBSERVED, AND DELIVER TO LENDER A TRUE COPY
OF EACH SUCH NOTICE, TOGETHER WITH ANY OTHER CONSENTS, NOTICES, REQUESTS OR
OTHER WRITTEN CORRESPONDENCE BETWEEN MORTGAGE BORROWER AND MORTGAGE LENDER.
5.38
MORTGAGE LOAN ESTOPPELS.
BORROWER SHALL, OR SHALL CAUSE MORTGAGE
BORROWER TO, USE COMMERCIALLY REASONABLE EFFORTS FROM TIME TO TIME, TO OBTAIN
FROM THE MORTGAGE LENDER SUCH CERTIFICATES OF ESTOPPEL WITH RESPECT TO
COMPLIANCE BY MORTGAGE BORROWER WITH THE TERMS OF THE MORTGAGE LOAN DOCUMENTS AS
MAY BE REASONABLY REQUESTED BY LENDER.
IN THE EVENT OR TO THE EXTENT THAT
MORTGAGE LENDER IS NOT LEGALLY OBLIGATED TO DELIVER SUCH CERTIFICATES OF
ESTOPPEL AND IS UNWILLING TO DELIVER THE SAME, OR IS LEGALLY OBLIGATED TO
DELIVER SUCH CERTIFICATES OF ESTOPPEL BUT BREACHES SUCH OBLIGATION, THEN
BORROWER SHALL NOT BE IN BREACH OF THIS PROVISION SO LONG AS BORROWER FURNISHES
TO LENDER AN ESTOPPEL EXECUTED BY BORROWER AND MORTGAGE BORROWER AND EXPRESSLY
REPRESENTING TO LENDER, TO THE BEST OF THEIR KNOWLEDGE, THE INFORMATION
REQUESTED BY LENDER REGARDING COMPLIANCE BY MORTGAGE BORROWER WITH THE TERMS OF
THE MORTGAGE LOAN DOCUMENTS.
BORROWER HEREBY INDEMNIFIES LENDER FROM AND
AGAINST ALL OUT-OF-POCKET LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ASSESSMENTS, ACTIONS, OR CAUSES OF ACTION, JUDGMENTS, SUITS, CLAIMS, DEMANDS,
COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' AND OTHER
PROFESSIONAL FEES, WHETHER OR NOT SUIT IS BROUGHT AND SETTLEMENT COSTS) AND
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED
BY, OR ASSERTED AGAINST LENDER BASED IN WHOLE OR IN PART UPON ANY FACT, EVENT,
CONDITION, OR CIRCUMSTANCES RELATING TO THE MORTGAGE LOAN WHICH WAS
MISREPRESENTED IN, OR WHICH WARRANTS DISCLOSURE AND WAS KNOWINGLY OMITTED FROM
SUCH ESTOPPEL EXECUTED BY BORROWER AND MORTGAGE BORROWER.
5.39
LIMITATION ON SECURITIES ISSUANCES.
BORROWER SHALL NOT ISSUE, AND
SHALL NOT PERMIT MORTGAGE BORROWER TO ISSUE, ANY LIMITED LIABILITY COMPANY
MEMBERSHIP INTERESTS OR OTHER SECURITIES OTHER THAN THOSE THAT HAVE BEEN ISSUED
AS OF THE DATE HEREOF.
59
5.40
DISTRIBUTIONS.
(A)
ANY AND ALL DIVIDENDS, INCLUDING CAPITAL DIVIDENDS, STOCK OR
LIQUIDATING DIVIDENDS, DISTRIBUTIONS OF PROPERTY, REDEMPTIONS OR OTHER
DISTRIBUTIONS MADE BY MORTGAGE BORROWER ON OR IN RESPECT OF ANY INTERESTS IN
MORTGAGE BORROWER, AND ANY AND ALL CASH AND OTHER PROPERTY RECEIVED IN PAYMENT
OF THE PRINCIPAL OF OR IN REDEMPTION OF OR IN EXCHANGE FOR ANY SUCH INTERESTS
(COLLECTIVELY, THE "DISTRIBUTIONS"), SHALL BECOME PART OF THE COLLATERAL.
NOTWITHSTANDING THE FOREGOING, LENDER EXPRESSLY AGREES THAT BORROWER SHALL BE
PERMITTED TO DISTRIBUTE TO ITS MEMBER ANY DISTRIBUTIONS THAT BORROWER RECEIVES
ONLY UPON THE EXPRESS CONDITION THAT NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING UNDER THE LOAN.
(B)
IF ANY DISTRIBUTIONS SHALL BE RECEIVED BY BORROWER OR ANY AFFILIATE
OF BORROWER AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF