in full force and effect
in accordance with its terms and no material default or event of default exists
thereunder.
SECTION 3.35
NO RELIANCE.
Each Credit Party has made its own independent decisions to enter into the
Credit Documents and each Loan and as to whether such Loan is appropriate and
proper for it based upon its own judgment and upon advice from such advisors
(including, without limitation, legal counsel and accountants) as it has deemed
necessary.
No Credit Party is relying upon any advice from the Administrative
Agent or any Lender as to any aspect of the Credit Documents or Loans,
including, without limitation, the legal, accounting or tax treatment of such
Loans.
SECTION 3.36
COLLATERAL.
(A)
THERE ARE NO OUTSTANDING RIGHTS, OPTIONS,
WARRANTS OR AGREEMENTS FOR THE PURCHASE, SALE OR ISSUANCE OF THE COLLATERAL
CREATED BY, THROUGH, OR AS A RESULT OF ANY CREDIT PARTY'S ACTIONS OR
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INACTIONS; (B) THERE ARE NO AGREEMENTS ON THE PART OF ANY CREDIT PARTY TO ISSUE,
SELL OR DISTRIBUTE THE COLLATERAL, OTHER THAN THIS AGREEMENT AND THE CREDIT
DOCUMENTS; AND (C) NO CREDIT PARTY HAS ANY OBLIGATION (CONTINGENT OR OTHERWISE)
TO PURCHASE, REDEEM OR OTHERWISE ACQUIRE ANY SECURITIES OR ANY INTEREST THEREIN
OR TO PAY ANY DIVIDEND OR MAKE ANY DISTRIBUTION IN RESPECT OF THE COLLATERAL,
EXCEPT, IN THE CASE OF (A) AND (B), FOR PURCHASE RIGHTS THAT MAY BE CONTAINED IN
ANY APPLICABLE INTERCREDITOR AGREEMENT INCLUDED IN THE MORTGAGE ASSET FILE.
(B)
AS OF THE DATE HEREOF, NO BORROWER HAS
ASSIGNED, PLEDGED, OR OTHERWISE CONVEYED OR ENCUMBERED ANY MORTGAGE ASSET (OR
ANY INTEREST THEREIN) TO ANY OTHER PERSON, AND IMMEDIATELY PRIOR TO THE PLEDGE
OF SUCH MORTGAGE ASSET TO THE LENDERS, BORROWER WAS THE SOLE OWNER OF SUCH
MORTGAGE ASSET AND HAD GOOD AND MARKETABLE TITLE THERETO, FREE AND CLEAR OF ALL
LIENS, IN EACH CASE EXCEPT FOR LIENS TO BE RELEASED SIMULTANEOUSLY WITH THE
PLEDGE TO THE LENDERS HEREUNDER.
(C)
THE PROVISIONS OF THE SECURITY AGREEMENT
AND THE RELATED CONFIRMATION ARE EFFECTIVE TO CREATE IN FAVOR OF THE
ADMINISTRATIVE AGENT FOR THE RATABLE BENEFIT OF THE LENDERS A LEGAL, VALID AND
ENFORCEABLE SECURITY INTEREST IN ALL RIGHT, TITLE AND INTEREST OF BORROWERS IN,
TO AND UNDER THE COLLATERAL.
(D)
UPON RECEIPT BY THE CUSTODIAN OF EACH
MEZZANINE NOTE OR JUNIOR INTEREST NOTE, ENDORSED IN BLANK BY A DULY AUTHORIZED
OFFICER OF BORROWER, THE ADMINISTRATIVE AGENT SHALL HAVE FOR THE RATABLE BENEFIT
OF THE LENDERS A VALID AND FULLY PERFECTED FIRST PRIORITY SECURITY INTEREST IN
ALL RIGHT, TITLE AND INTEREST OF THE BORROWERS IN THE COLLATERAL DESCRIBED
THEREIN.
(E)
EACH OF THE REPRESENTATIONS AND WARRANTIES
MADE IN RESPECT OF THE MORTGAGE ASSETS PURSUANT TO SCHEDULE 1(C), AS APPLICABLE,
ARE TRUE, COMPLETE AND CORRECT.
(F)
UPON THE FILING OF FINANCING STATEMENTS
ON FORM UCC-1 NAMING THE ADMINISTRATIVE AGENT, AS AGENT FOR THE LENDERS, AS
"SECURED PARTY", EACH BORROWER AS "DEBTOR" AND DESCRIBING THE COLLATERAL, IN THE
JURISDICTIONS AND RECORDING OFFICES LISTED ON SCHEDULE 3.18 ATTACHED HERETO, THE
SECURITY INTERESTS GRANTED