AND MAKE SUCH OTHER ADJUSTMENTS FROM TIME TO TIME AS SHALL BE
EQUITABLE, TO THE END THAT ALL LENDERS SHALL SHARE RATABLY THE BENEFIT OF SUCH
PAYMENT. TO SUCH END LENDERS SHALL MAKE APPROPRIATE ADJUSTMENTS AMONG THEMSELVES
(BY THE RESALE OF PARTICIPATIONS SOLD OR OTHERWISE) IF SUCH PAYMENT IS RESCINDED
OR MUST OTHERWISE BE RESTORED.
THE BORROWER AGREES THAT ANY LENDER SO
PURCHASING A PARTICIPATION (OR DIRECT INTEREST) IN THE INDIVIDUAL LOAN
COMMITMENTS OWED TO SUCH OTHER LENDERS MAY EXERCISE ALL RIGHTS OF SET-OFF,
BANKER'S LIEN, COUNTERCLAIM OR SIMILAR RIGHTS WITH THE RESPECT TO SUCH
PARTICIPATION AS FULLY AS IF SUCH LENDER WERE A DIRECT HOLDER OF THE LOAN IN THE
AMOUNT OF SUCH PARTICIPATION.
NOTHING CONTAINED HEREIN SHALL REQUIRE ANY LENDER
TO EXERCISE ANY SUCH RIGHT OR SHALL AFFECT THE RIGHT OF ANY LENDER TO EXERCISE,
AND RETAIN THE BENEFITS OF EXERCISING, ANY SUCH RIGHT WITH RESPECT TO ANY OTHER
INDEBTEDNESS OR OBLIGATION OF THE BORROWER.
SECTION 2.13
SEVERAL OBLIGATIONS.
NO LENDER SHALL BE RESPONSIBLE FOR THE
FAILURE OF ANY OTHER LENDER TO PERFORM ANY OBLIGATION TO BE MADE OR PERFORMED BY
SUCH OTHER LENDER HEREUNDER, AND THE FAILURE OF ANY LENDER TO PERFORM ANY
OBLIGATION TO BE MADE OR PERFORMED BY IT HEREUNDER SHALL NOT RELIEVE THE
OBLIGATION OF ANY OTHER LENDER TO MAKE OR TO PERFORM ANY OBLIGATION TO BE MADE
OR PERFORMED BY SUCH OTHER LENDER.
THE LIABILITY OF EACH LENDER HEREUNDER SHALL
BE SEVERAL AND NOT JOINT.
ARTICLE III - REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and each Lender as of
the Closing Date that:
SECTION 3.1
LEGAL STATUS AND AUTHORITY.
EACH BORROWER (A) IS DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS STATE OF
FORMATION; (B) IS DULY QUALIFIED
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to transact business and is in good standing in the State; and (c) has all
necessary approvals, governmental and otherwise (except where failure to have
such would not cause or would not reasonably be expected to cause a Material
Adverse Effect), and full power and authority to own, operate and lease the
Property.
Each Borrower has full power, authority and legal right to mortgage,
grant, bargain, sell, pledge, assign, warrant, transfer and convey the Property
pursuant to the terms hereof and to keep and observe all of the terms of this
Agreement, the Note, the Security Instrument and the other Loan Documents on
each such Borrower's part to be performed.
SECTION 3.2
VALIDITY OF DOCUMENTS.
(A)
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT, THE NOTE, THE SECURITY INSTRUMENT AND THE OTHER
LOAN DOCUMENTS BY EACH BORROWER AND ITS APPLICABLE AFFILIATES AND THE BORROWING
EVIDENCED BY THE NOTE AND THIS AGREEMENT (I) ARE WITHIN THE POWER AND AUTHORITY
OF SUCH PARTIES; (II) HAVE BEEN AUTHORIZED BY ALL REQUISITE ORGANIZATIONAL
ACTION OF SUCH PARTIES; (III) HAVE RECEIVED ALL NECESSARY APPROVALS AND
CONSENTS, CORPORATE, GOVERNMENTAL OR OTHERWISE EXCEPT WHERE THE FAILURE TO HAVE
SUCH APPROVAL WOULD NOT CAUSE OR WOULD NOT REASONABLY BE EXPECTED TO CAUSE