THAT ARE BEING CONTESTED IN GOOD FAITH
BY APPROPRIATE PROCEEDINGS AND FOR WHICH SUCH BORROWER OR SUCH SUBSIDIARY, AS
APPLICABLE, HAS SET ASIDE ON ITS BOOKS ADEQUATE RESERVES OR (B) TO THE EXTENT
THAT THE FAILURE TO DO SO COULD NOT REASONABLY BE EXPECTED TO RESULT IN A
MATERIAL ADVERSE EFFECT.
(R)
EACH LOAN PARTY AND EACH OF ITS
SUBSIDIARIES OWNS, OR IS LICENSED TO USE, ALL TRADEMARKS, TRADENAMES,
COPYRIGHTS, PATENTS AND OTHER INTELLECTUAL PROPERTY NECESSARY, IN THE AGGREGATE,
FOR THE CONDUCT OF ITS BUSINESS AS CURRENTLY CONDUCTED, AND THE USE THEREOF BY
THE BORROWER AND THE GUARANTORS DOES NOT INFRINGE UPON THE RIGHTS OF ANY OTHER
PERSON, EXCEPT FOR ANY SUCH INFRINGEMENT THAT, INDIVIDUALLY OR IN THE AGGREGATE,
COULD NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(S)
NO LOAN PARTY HAS ANY CONTINGENT LIABILITY
IN CONNECTION WITH ANY RELEASE OF ANY HAZARDOUS MATERIALS INTO THE ENVIRONMENT
THAT COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(T)
NONE OF THE LOAN PARTIES OR THEIR
SUBSIDIARIES ARE IN VIOLATION OF ANY LAW, RULE OR REGULATION, OR IN DEFAULT WITH
RESPECT TO ANY JUDGMENT, WRIT, INJUNCTION OR DECREE OF ANY GOVERNMENTAL
AUTHORITY, EXCEPT FOR ANY SUCH VIOLATION OR DEFAULT THAT COULD NOT REASONABLY BE
EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(U)
NO BROKER, FINDER OR INVESTMENT BANKER IS
ENTITLED TO ANY BROKERAGE, FINDER'S OR OTHER FEE OR COMMISSION IN CONNECTION
WITH THIS AGREEMENT OR THE LOAN DOCUMENTS OR THE TRANSACTIONS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY BASED UPON ARRANGEMENTS MADE BY OR
ON BEHALF OF THE BORROWER, OTHER THAN FEES PAYABLE TO THE LEAD ARRANGERS, THE
AGENTS, THE LENDERS AND THE BORROWER'S ADVISORS IN CONNECTION WITH THE
TRANSACTIONS.
46
(V)
TO THE EXTENT APPLICABLE, EACH LOAN PARTY IS
IN COMPLIANCE, IN ALL MATERIAL RESPECTS, WITH THE PATRIOT ACT.
(W)
SET FORTH IN SCHEDULE 4.01(W) IS A COMPLETE
AND ACCURATE LIST OF ALL MORTGAGE LOAN ASSETS OF THE LOAN PARTIES IN THE FORM OF
EXHIBIT L HERETO DESCRIBING THE INFORMATION WITH RESPECT TO EACH MORTGAGE LOAN
ASSET DESCRIBED IN EXHIBIT L HERETO.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
Section 5.01
Affirmative Covenants.
So long as
any Advance or any other Obligation (other than contingent indemnification
obligations not then accrued and payable) of any Loan Party under any Loan
Document shall remain unpaid, each Loan Party will:
(A)
CORPORATE EXISTENCE.
PRESERVE AND
MAINTAIN, AND CAUSE EACH MATERIAL SUBSIDIARY TO PRESERVE AND MAINTAIN (I) ITS
LEGAL EXISTENCE AND GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
ORGANIZATION (EXCEPT (A) IN A TRANSACTION PERMITTED BY SECTION 5.02(H) OR (B) IN
THE CASE OF A GOOD STANDING, TO THE EXTENT THAT THE FAILURE TO PRESERVE OR
MAINTAIN SUCH GOOD STANDING COULD NOT REASONABLY BE EXPECTED TO RESULT IN A
MATERIAL ADVERSE EFFECT) AND (II) ALL GOVERNMENTAL RIGHTS, PRIVILEGES,
QUALIFICATIONS, PERMITS, LICENSES AND FRANCHISES NECESSARY IN THE NORMAL CONDUCT
OF ITS BUSINESS (EXCEPT TO THE EXTENT THAT FAILURE TO DO SO COULD NOT, IN