DOCUMENTS. TO BORROWER'S ACTUAL KNOWLEDGE, THE PERMITTED ENCUMBRANCES IN THE
AGGREGATE DO NOT MATERIALLY ADVERSELY AFFECT THE VALUE, OPERATION OR USE OF THE
PROPERTY OF BORROWER'S ABILITY TO REPAY THE LOAN. THIS MORTGAGE, WHEN PROPERLY
RECORDED IN THE APPROPRIATE RECORDS, TOGETHER WITH ANY UNIFORM COMMERCIAL CODE
FINANCING STATEMENTS REQUIRED TO BE FILED IN CONNECTION THEREWITH, WILL CREATE
(A) A VALID, PERFECTED FIRST PRIORITY LIEN, SECURITY TITLE AND SECURITY INTEREST
ON THE PROPERTY, TO THE EXTENT SUCH SECURITY INTERESTS CAN BE PERFECTED BY
FILING; SUBJECT ONLY TO ANY APPLICABLE PERMITTED ENCUMBRANCES, SUCH OTHER LIENS
AS ARE PERMITTED PURSUANT TO THE LOAN DOCUMENTS AND THE LIENS CREATED BY THE
LOAN DOCUMENTS. THERE ARE NO CLAIMS FOR PAYMENT FOR WORK, LABOR OR MATERIALS
AFFECTING THE PROPERTY WHICH ARE PAST DUE AND ARE OR MAY BECOME A LIEN PRIOR TO,
OR OF EQUAL PRIORITY WITH, THE LIENS CREATED BY THE LOAN DOCUMENTS UNLESS SUCH
CLAIMS FOR PAYMENTS ARE BEING CONTESTED IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF THIS MORTGAGE.
SECTION 3.10.
LETTER OF CREDIT RIGHTS. IF BORROWER
IS AT ANY TIME A BENEFICIARY UNDER A LETTER OF CREDIT RELATING TO THE
PROPERTIES, RIGHTS, TITLES AND INTERESTS REFERENCED IN SECTION 1.1 OF THIS
MORTGAGE NOW OR HEREAFTER ISSUED IN FAVOR OF BORROWER, BORROWER SHALL PROMPTLY
NOTIFY LENDER THEREOF AND, AT THE REQUEST AND OPTION OF LENDER, BORROWER SHALL,
PURSUANT TO AN AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY TO LENDER, EITHER
(I) ARRANGE FOR THE ISSUER AND ANY CONFIRMER OF SUCH LETTER OF CREDIT TO CONSENT
TO AN ASSIGNMENT TO LENDER OF THE PROCEEDS OF ANY DRAWING UNDER THE LETTER OF
CREDIT OR (II) ARRANGE FOR THE LENDER TO BECOME THE TRANSFEREE BENEFICIARY OF
THE LETTER OF CREDIT, WITH LENDER AGREEING, IN EACH CASE THAT THE PROCEEDS OF
ANY DRAWING UNDER THE LETTER OF CREDIT ARE TO BE APPLIED AS PROVIDED IN
SECTION 7.2 OF THIS MORTGAGE.
ARTICLE 4
OBLIGATIONS AND RELIANCES
SECTION 4.1.
RELATIONSHIP OF BORROWER AND
LENDER. THE RELATIONSHIP BETWEEN BORROWER AND LENDER IS SOLELY THAT OF DEBTOR
AND CREDITOR, AND LENDER HAS NO FIDUCIARY OR OTHER SPECIAL RELATIONSHIP WITH
BORROWER, AND NO TERM OR CONDITION OF ANY OF THE LOAN AGREEMENT, THE NOTE, THIS
MORTGAGE AND THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED SO AS TO DEEM THE
RELATIONSHIP BETWEEN BORROWER AND LENDER TO BE OTHER THAN THAT OF DEBTOR AND
CREDITOR.
10
SECTION 4.2.
NO RELIANCE ON LENDER. THE
GENERAL PARTNERS, MEMBERS, PRINCIPALS AND (IF BORROWER IS A TRUST) BENEFICIAL
OWNERS OF BORROWER ARE EXPERIENCED IN THE OWNERSHIP AND OPERATION OF PROPERTIES
SIMILAR TO THE PROPERTY, AND BORROWER AND LENDER ARE RELYING SOLELY UPON SUCH
EXPERTISE AND BUSINESS PLAN IN CONNECTION WITH THE OWNERSHIP AND OPERATION OF
THE PROPERTY. BORROWER IS NOT RELYING ON LENDER'S EXPERTISE, BUSINESS ACUMEN OR
ADVICE IN CONNECTION WITH THE PROPERTY.
SECTION 4.3.
NO LENDER OBLIGATIONS.
(A)
NOTWITHSTANDING THE PROVISIONS OF
SUBSECTIONS 1.1(H) AND (N) OR SECTION 1.2, LENDER IS NOT UNDERTAKING THE
PERFORMANCE OF (I) ANY OBLIGATIONS UNDER THE LEASES; OR (II) ANY OBLIGATIONS
WITH