IN SECTIONS 3.1.1, 3.1.2 AND 3.1.3 HEREOF.
3.1.5
OWNERSHIP STRUCTURE; FORMATION DOCUMENTS AND ENTITY AGREEMENTS.
[THE BORROWER SHALL OWN 100% OF THE PROPERTY OWNER.]
THE FIRST UNION LENDER
SHALL HAVE RECEIVED A CERTIFICATE OF AN AUTHORIZED PERSON OF THE BORROWER
CERTIFYING AS TO (A) THE FORMATION DOCUMENTS OF EACH ENTITY IN THE OWNERSHIP
STRUCTURE OF THE PROPERTY HAVING BEEN DULY EXECUTED, DELIVERED AND FILED AND
REMAINING IN FULL FORCE AND EFFECT AND UNMODIFIED AS OF THE DATE OF SUCH
CERTIFICATE (AND ANNEXING A COPY THEREOF), (B) DUE AUTHORIZATION, EXECUTION AND
DELIVERY BY THE BORROWER OF THE LOAN DOCUMENTS TO WHICH IT IS A PARTY AND
ATTACHING COPIES OF THE APPLICABLE AUTHORIZING RESOLUTIONS THERETO, AND (C) THE
BORROWER AND PROPERTY OWNER BEING IN GOOD STANDING AND AUTHORIZED TO DO BUSINESS
IN EACH JURISDICTION WHERE THE OWNERSHIP OF ITS ASSETS AND OPERATION OF ITS
BUSINESS REQUIRES SUCH QUALIFICATION.
3.1.6
Satisfactory Loan Documents.
On the Loan Advance Date, each of the
Loan Documents shall be satisfactory in form, content and manner of execution
and delivery to the First Union Lender and all Loan Documents shall be in full
force and effect.
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3.1.7
Asset Management Agreement.
So long as MARC Realty, LLC or an
Affiliate of the MARC Principals is the property manager of the Property, the
Borrower or the Property Owner shall have retained an Affiliate of the First
Union Lender to provide Asset Management Services to the Property for a fee
equal to 1% of the gross revenues of the Property.
3.1.8
Financial Information; No Material Change.
(A)
NO CHANGE SHALL HAVE OCCURRED IN THE FINANCIAL CONDITION,
BUSINESS, AFFAIRS, OPERATIONS OR CONTROL OF THE BORROWER, THE PROPERTY OWNER OR
THE PROPERTY SINCE THE DATE OF THEIR RESPECTIVE FINANCIAL STATEMENTS OR
FINANCIAL PROJECTIONS MOST RECENTLY DELIVERED TO THE FIRST UNION LENDER, WHICH
CHANGE HAS HAD OR COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT; AND THE BORROWER SHALL HAVE FURNISHED THE FIRST UNION LENDER SUCH OTHER
FINANCIAL INFORMATION, PROJECTIONS, AND CERTIFICATIONS AS REASONABLY REQUESTED
BY THE FIRST UNION LENDER.
(B)
THE BORROWER SHALL HAVE PROVIDED TO THE FIRST UNION LENDER A COPY
CERTIFIED BY AN AUTHORIZED PERSON OF THE BORROWER OF ITS BALANCE SHEET AFTER
GIVING EFFECT TO, AS APPLICABLE, ANY EXISTING SENIOR LOANS AND THE LOAN, TO
EVIDENCE THAT THE BORROWER IS SOLVENT, HAS ASSETS HAVING A FAIR MARKET VALUE IN
EXCESS OF THE AMOUNT REQUIRED TO PAY THE BORROWER'S PROBABLE LIABILITIES ON THE
BORROWER'S EXISTING DEBTS AS SUCH BECOME ABSOLUTE AND MATURE, AND HAS ADEQUATE
CAPITAL FOR THE CONDUCT OF THE BORROWER'S BUSINESS AND THE ABILITY TO PAY THE
BORROWER'S DEBTS FROM TIME TO TIME INCURRED IN CONNECTION THEREWITH AS SUCH
DEBTS MATURE.
3.1.9
LITIGATION.
THERE SHALL NOT BE ANY ACTIONS, SUITS OR PROCEEDINGS
AT LAW OR IN EQUITY OR BY OR BEFORE ANY GOVERNMENTAL INSTRUMENTALITY OR OTHER
AGENCY OR REGULATORY AUTHORITY BY ANY ENTITY (PRIVATE OR GOVERNMENTAL) PENDING
OR, TO THE BEST OF THE BORROWER'S KNOWLEDGE, THREATENED WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED HEREBY OR ANY