MISLEADING.
THERE IS NO MATERIAL FACT PRESENTLY KNOWN TO
BORROWER WHICH HAS NOT BEEN DISCLOSED TO LENDER WHICH ADVERSELY AFFECTS, NOR AS
FAR AS BORROWER CAN FORESEE, MIGHT ADVERSELY AFFECT, THE PROPERTY OR THE
BUSINESS, OPERATIONS OR CONDITION (FINANCIAL OR OTHERWISE) OF BORROWER.
4.1.9
NO PLAN ASSETS.
BORROWER IS NOT AN "EMPLOYEE
BENEFIT PLAN," AS DEFINED IN SECTION 3(3) OF ERISA, SUBJECT TO TITLE I OF ERISA,
AND NONE OF THE ASSETS OF BORROWER CONSTITUTES OR WILL CONSTITUTE "PLAN ASSETS"
OF ONE OR MORE SUCH PLANS WITHIN THE MEANING OF 29 C.F.R. SECTION 2510.3-101.
IN ADDITION, (A) BORROWER IS NOT A "GOVERNMENTAL PLAN" WITHIN THE MEANING OF
SECTION 3(32) OF ERISA AND (B) TRANSACTIONS BY OR WITH BORROWER ARE NOT SUBJECT
TO STATE STATUTES REGULATING INVESTMENT OF, AND FIDUCIARY OBLIGATIONS WITH
RESPECT TO, GOVERNMENTAL PLANS SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA
OR SECTION 4975 OF THE CODE CURRENTLY IN EFFECT, WHICH PROHIBIT OR OTHERWISE
RESTRICT THE TRANSACTIONS CONTEMPLATED BY THIS LOAN AGREEMENT.
4.1.10
COMPLIANCE.
TO BORROWER'S KNOWLEDGE, BORROWER AND THE
PROPERTY AND THE USE THEREOF COMPLY IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE
LEGAL REQUIREMENTS, INCLUDING, WITHOUT LIMITATION, BUILDING AND ZONING
ORDINANCES AND CODES (INCLUDING, WITHOUT LIMITATION, NUMBER OF PARKING SPACES).
BORROWER IS NOT IN DEFAULT OR VIOLATION OF ANY ORDER, WRIT, INJUNCTION, DECREE
OR DEMAND OF ANY GOVERNMENTAL AUTHORITY.
THERE HAS NOT BEEN COMMITTED BY
BORROWER OR, TO BORROWER'S KNOWLEDGE, ANY OTHER PERSON IN OCCUPANCY OF OR
INVOLVED WITH THE OPERATION OR USE OF THE PROPERTY ANY ACT OR OMISSION AFFORDING
THE FEDERAL GOVERNMENT OR ANY OTHER
29
GOVERNMENTAL AUTHORITY THE RIGHT OF FORFEITURE AS AGAINST THE PROPERTY OR ANY
PART THEREOF OR ANY MONIES PAID IN PERFORMANCE OF BORROWER'S OBLIGATIONS UNDER
ANY OF THE LOAN DOCUMENTS.
4.1.11
FINANCIAL INFORMATION.
ALL FINANCIAL DATA, INCLUDING,
WITHOUT LIMITATION, THE STATEMENTS OF CASH FLOW AND INCOME AND OPERATING
EXPENSE, THAT HAVE BEEN DELIVERED TO LENDER IN RESPECT OF THE PROPERTY (I) ARE,
TO THE BEST OF BORROWER'S KNOWLEDGE, TRUE, COMPLETE AND CORRECT IN ALL MATERIAL
RESPECTS, (II) ACCURATELY REPRESENT THE FINANCIAL CONDITION OF THE PROPERTY AS
OF THE DATE OF SUCH REPORTS, AND (III) TO THE EXTENT PREPARED OR AUDITED BY AN
INDEPENDENT CERTIFIED PUBLIC ACCOUNTING FIRM, HAVE BEEN PREPARED IN ACCORDANCE
WITH ACCOUNTING PRINCIPLES REASONABLY ACCEPTABLE TO LENDER, CONSISTENTLY APPLIED
THROUGHOUT THE PERIODS COVERED, EXCEPT AS DISCLOSED THEREIN; PROVIDED, HOWEVER,
THAT IF ANY FINANCIAL DATA IS DELIVERED TO LENDER BY ANY PERSON OTHER THAN
BORROWER, INDEMNITOR OR ANY OF THEIR AFFILIATES, OR IF SUCH FINANCIAL DATA HAS
BEEN PREPARED BY OR AT THE DIRECTION OF ANY PERSON OTHER THAN BORROWER,
INDEMNITOR OR ANY OF THEIR AFFILIATES, THEN THE FOREGOING REPRESENTATIONS WITH
RESPECT TO SUCH FINANCIAL DATA SHALL BE TO THE BEST OF BORROWER'S KNOWLEDGE,
AFTER DUE INQUIRY.
BORROWER DOES NOT HAVE ANY CONTINGENT LIABILITIES,
LIABILITIES FOR TAXES, UNUSUAL FORWARD OR LONG-TERM COMMITMENTS OR UNREALIZED OR
ANTICIPATED LOSSES FROM ANY UNFAVORABLE COMMITMENTS THAT ARE KNOWN TO BORROWER
AND REASONABLY LIKELY TO HAVE A MATERIALLY ADVERSE EFFECT ON THE