BORROWER TO OBTAIN THE RELEASE OF
THE LIEN OF THE MORTGAGE LOAN DOCUMENTS FROM THE RELEASE PROPERTY AND THE
SUBSTITUTE PROPERTY SHALL BE DEEMED TO BE AN INDIVIDUAL PROPERTY FOR PURPOSES OF
THIS AGREEMENT, AND (EXCEPT AS OTHERWISE PROVIDED IN THE PROVISO TO THE LAST
SENTENCE OF SECTION 2.9(H) HEREOF) THE SUBSTITUTE
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ALLOCATED LOAN AMOUNT WITH RESPECT TO SUCH SUBSTITUTE PROPERTY SHALL BE DEEMED
TO BE THE ALLOCATED LOAN AMOUNT WITH RESPECT TO SUCH SUBSTITUTE PROPERTY FOR ALL
PURPOSES HEREUNDER.
III.
MORTGAGE BORROWER DISTRIBUTIONS
Section 3.1
Mortgage Borrower Distributions.
All transfers of Mortgage Borrower's funds to or for the benefit of Lender or
Borrower, pursuant to this Agreement, the Mortgage Loan Documents or any of the
other Loan Documents, are intended by Borrower and Mortgage Borrower to
constitute and shall constitute distributions from Mortgage Borrower to
Borrower, and, in each case, must comply with the requirements as to
distributions of the Delaware Revised Uniform Limited Partnership Act or the
Delaware Limited Liability Company Act, as applicable. No provision of the Loan
Documents shall create a debtor-creditor relationship between Borrower and
Mortgage Lender.
IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1
Borrower Representations.
Borrower represents and warrants as of the Closing Date that:
4.1.1
Organization.
(A)
EACH BORROWER ENTITY IS DULY ORGANIZED AND IS VALIDLY EXISTING AND
IN GOOD STANDING IN THE JURISDICTION IN WHICH IT IS ORGANIZED, WITH REQUISITE
POWER AND AUTHORITY TO OWN THE ASSETS OWNED BY SUCH BORROWER ENTITY AND TO
TRANSACT THE BUSINESSES IN WHICH IT IS NOW ENGAGED. EACH BORROWER ENTITY IS DULY
QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING IN THE STATE OF DELAWARE.
BORROWER POSSESSES ALL RIGHTS, LICENSES, PERMITS AND AUTHORIZATIONS,
GOVERNMENTAL OR OTHERWISE, NECESSARY TO ENTITLE IT TO OWN ITS ASSETS AND TO
TRANSACT THE BUSINESSES IN WHICH IT IS NOW ENGAGED. ATTACHED HERETO AS SCHEDULE
4.1.1 IS AN ORGANIZATIONAL CHART OF BORROWER. EACH BORROWER ENTITY HAS DELIVERED
TO LENDER TRUE AND CORRECT COPIES OF THE APPLICABLE MORTGAGE BORROWER FORMATION
AGREEMENT AND ALL OTHER ORGANIZATIONAL DOCUMENTS FOR THE APPLICABLE MORTGAGE
BORROWER, MORTGAGE PRINCIPAL, BORROWER AND PRINCIPAL, ALL OF WHICH ARE IN FULL
FORCE AND EFFECT AS OF THE DATE HEREOF.
(B)
EACH BORROWER ENTITY HAS THE POWER AND AUTHORITY AND THE REQUISITE
OWNERSHIP INTEREST TO CONTROL THE ACTIONS OF MORTGAGE BORROWER, AND UPON THE
REALIZATION ON THE COLLATERAL UNDER THE PLEDGE AGREEMENT, LENDER OR ANY OTHER
PARTY SUCCEEDING TO THE BORROWER'S INTEREST IN THE COLLATERAL DESCRIBED IN THE
PLEDGE AGREEMENT WOULD HAVE SUCH CONTROL. WITHOUT LIMITING THE FOREGOING,
BORROWER HAS SUFFICIENT CONTROL OVER MORTGAGE BORROWER TO CAUSE MORTGAGE
BORROWER TO (I) TAKE ANY ACTION ON MORTGAGE BORROWER'S PART REQUIRED BY THE LOAN
DOCUMENTS AND THE MORTGAGE LOAN DOCUMENTS AND (II) REFRAIN FROM TAKING ANY
ACTION PROHIBITED BY THE LOAN DOCUMENTS AND THE MORTGAGE LOAN DOCUMENTS.
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4.1.2
Proceedings.
Borrower has taken all necessary action to authorize the execution, delivery and
performance of this Agreement and the other Loan Documents. This Agreement and
the other Loan Documents have been duly executed