AGAINST THE PROPERTY.
16.
BORROWER'S REPRESENTATIONS.
BORROWER REPRESENTS AND WARRANTS TO
LENDER, AND COVENANTS AND AGREES WITH LENDER, AS FOLLOWS:
(A)
BORROWER HAS THE POWER AND REQUISITE AUTHORITY TO EXECUTE,
DELIVER, AND PERFORM ITS OBLIGATIONS HEREUNDER AND UNDER THE LOAN DOCUMENTS, AND
IS DULY AUTHORIZED, AND HAS TAKEN ALL NECESSARY ACTION TO AUTHORIZE SUCH PERSON
OR ENTITY TO EXECUTE, DELIVER AND PERFORM THIS AMENDMENT, THE FIRST AMENDMENT TO
DEED OF TRUST AND THE LOAN DOCUMENTS AND WILL CONTINUE TO BE DULY AUTHORIZED TO
PERFORM ITS OBLIGATIONS UNDER THIS AMENDMENT, THE FIRST AMENDMENT TO DEED OF
TRUST AND THE LOAN DOCUMENTS.
(B)
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THE LOAN
DOCUMENTS, EXCEPT AS EXPRESSLY AMENDED BY THIS AMENDMENT OR MODIFIED BY VIRTUE
OF A DEFINITIONAL CHANGE HEREIN, ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS
AS IF MADE ON THE DATE HEREOF, WITH THE EXCEPTION OF THOSE ITEMS SPECIFICALLY
LISTED ON SCHEDULE 1 ATTACHED HERETO AND MADE A PART HEREOF.
17.
RELEASE.
EFFECTIVE AS OF THE AMENDMENT EFFECTIVE DATE, AND IN
CONSIDERATION FOR THIS AMENDMENT AND ALL DOCUMENTS EXECUTED HEREWITH, BORROWER
AND GUARANTORS AGREE AS FOLLOWS:
A.
FOR THE TIME PERIOD EXISTING ON AND PRIOR TO THE AMENDMENT
EFFECTIVE DATE AND RELATING EXCLUSIVELY TO THE LOAN DOCUMENTS AND THE LOAN
MEMORIALIZED THEREIN, BORROWER AND GUARANTORS FULLY AND FINALLY RELEASE AND
DISCHARGE LENDER (AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, REPRESENTATIVES,
EMPLOYEES, AGENTS AND ATTORNEYS) OF AND FROM ANY AND ALL DEFAULTS, POTENTIAL
DEFAULTS OCCURRING ON OR PRIOR TO THE AMENDMENT EFFECTIVE
6
DATE, CLAIMS, DAMAGES OR CAUSES OF ACTION TO, OF OR FOR THE BENEFIT (WHETHER
DIRECTLY OR INDIRECTLY) OF, BORROWER OR ANY GUARANTOR, AT LAW OR IN EQUITY,
KNOWN OR UNKNOWN, CONTINGENT OR OTHERWISE, WHETHER ASSERTED OR UNASSERTED,
WHETHER STATUTORY, IN CONTRACT OR IN TORT, AS WELL AS ANY OTHER KIND OR
CHARACTER OF ACTION NOW HELD, OWNED OR POSSESSED (WHETHER DIRECTLY OR
INDIRECTLY) BY BORROWER OR ANY GUARANTOR ON ACCOUNT OF, ARISING OUT OF, RELATED
TO OR CONCERNING, WHETHER DIRECTLY OR INDIRECTLY, PROXIMATELY OR REMOTELY, THE
LOAN DOCUMENTS AND ACCRUING PRIOR TO THE AMENDMENT EFFECTIVE DATE (COLLECTIVELY,
THE "RELEASED CLAIMS");
B.
IN ADDITION TO THE RELEASE SET FORTH ABOVE, AND NOT IN LIMITATION
THEREOF, BORROWER AND GUARANTOR EACH AGREE THAT IT OR HE WILL NEVER PROSECUTE,
OR VOLUNTARILY (UNLESS REQUIRED BY LAW) AID IN THE PROSECUTION OF, ANY OF THE
RELEASED CLAIMS, WHETHER BY CLAIM, COUNTERCLAIM OR OTHERWISE.
18.
LENDER'S REPRESENTATIONS.
LENDER REPRESENTS AND WARRANTS TO
BORROWER AS FOLLOWS:
(A)
AS OF THE AMENDMENT EFFECTIVE DATE, BORROWER IS NOT IN DEFAULT
UNDER ARTICLE VII(A) OF THE LOAN AGREEMENT AND TO LENDER'S CURRENT ACTUAL
KNOWLEDGE, BORROWER IS NOT IN DEFAULT UNDER ANY OTHER PROVISION IN ARTICLE VII
OF THE LOAN AGREEMENT.
AS USED IN THIS SECTION, THE WORDS "LENDER'S CURRENT
ACTUAL KNOWLEDGE" MEAN AND REFER TO THE CURRENT ACTUAL KNOWLEDGE OF LENDER'S
SOLE PORTFOLIO MANAGER WITH STEWARDSHIP OVER THE LOAN AS OF THE AMENDMENT
EFFECTIVE DATE, NOT IN HIS INDIVIDUAL CAPACITY BUT SOLELY IN HIS CAPACITY AS AN
OFFICER OF