INVESTMENT COMPANY ACT.
BORROWER IS NOT (1) AN "INVESTMENT COMPANY"
OR A COMPANY "CONTROLLED" BY AN "INVESTMENT COMPANY," WITHIN THE MEANING OF THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED; (2) A "HOLDING COMPANY" OR A
"SUBSIDIARY COMPANY" OF A "HOLDING COMPANY" OR AN "AFFILIATE" OF EITHER A
"HOLDING COMPANY" OR A "SUBSIDIARY COMPANY" WITHIN THE MEANING OF THE PUBLIC
UTILITY HOLDING COMPANY ACT OF 1935, AS AMENDED; OR (3) SUBJECT TO ANY OTHER
FEDERAL OR STATE LAW OR REGULATION WHICH PURPORTS TO RESTRICT OR REGULATE ITS
ABILITY TO BORROW MONEY.
3.1.32
INTENTIONALLY OMITTED.
3.1.33
NO BANKRUPTCY FILING.
BORROWER IS NOT CONTEMPLATING EITHER THE
FILING OF A PETITION BY IT UNDER ANY STATE OR FEDERAL BANKRUPTCY OR INSOLVENCY
LAWS OR THE LIQUIDATION OF ITS ASSETS OR PROPERTY, AND BORROWER DOES NOT HAVE
ANY KNOWLEDGE OF ANY PERSON CONTEMPLATING THE FILING OF ANY SUCH PETITION
AGAINST IT.
37
3.1.34
FULL AND ACCURATE DISCLOSURE.
TO THE BEST OF BORROWER'S KNOWLEDGE,
NO INFORMATION CONTAINED IN THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY
WRITTEN STATEMENT FURNISHED BY OR ON BEHALF OF BORROWER PURSUANT TO THE TERMS OF
THIS AGREEMENT CONTAINS ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITS TO
STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS CONTAINED HEREIN OR
THEREIN NOT MISLEADING IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE.
THERE IS NO FACT OR CIRCUMSTANCE PRESENTLY KNOWN TO BORROWER WHICH HAS NOT BEEN
DISCLOSED TO LENDER AND WHICH MATERIALLY ADVERSELY AFFECTS, OR IS REASONABLY
LIKELY TO MATERIALLY ADVERSELY AFFECT, THE PROPERTY, BORROWER OR ITS BUSINESS,
OPERATIONS OR CONDITION (FINANCIAL OR OTHERWISE).
3.1.35
FOREIGN PERSON.
BORROWER IS NOT A "FOREIGN PERSON" WITHIN THE
MEANING OF SECTION 1445(F)(3) OF THE CODE.
3.1.36
INTENTIONALLY OMITTED.
3.1.37
NO CHANGE IN FACTS OR CIRCUMSTANCES; DISCLOSURE.
TO THE BEST OF
BORROWER'S KNOWLEDGE, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN ANY
CONDITION, FACT, CIRCUMSTANCE OR EVENT THAT WOULD MAKE THE FINANCIAL STATEMENTS,
RENT ROLLS, REPORTS, CERTIFICATES OR OTHER DOCUMENTS SUBMITTED IN CONNECTION
WITH THE LOAN INACCURATE, INCOMPLETE OR OTHERWISE MISLEADING IN ANY MATERIAL
RESPECT OR THAT OTHERWISE MATERIALLY AND ADVERSELY AFFECTS THE BUSINESS
OPERATIONS OR THE FINANCIAL CONDITION OF BORROWER OR THE PROPERTY.
3.1.38
MANAGEMENT AGREEMENT.
ALL OF THE REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO THE MANAGEMENT AGREEMENT SET FORTH IN ARTICLE VII OF THIS AGREEMENT
ARE TRUE AND CORRECT IN ALL RESPECTS.
3.1.39
PERFECTION OF ACCOUNTS.
BORROWER HEREBY REPRESENTS AND WARRANTS TO
LENDER THAT UPON THE EXECUTION AND DELIVERY OF THE CASH MANAGEMENT AGREEMENT BY
ALL PARTIES THERETO, AND ASSUMING THAT THE ACCOUNTS HAVE BEEN ESTABLISHED
PURSUANT TO THE CASH MANAGEMENT AGREEMENT:
(A)
THIS AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS, CREATE A
VALID AND CONTINUING SECURITY INTEREST (AS DEFINED IN THE UNIFORM COMMERCIAL
CODE) IN THE ACCOUNTS IN FAVOR OF LENDER, WHICH SECURITY INTEREST IS PRIOR TO
ALL OTHER LIENS, OTHER THAN PERMITTED ENCUMBRANCES, AND IS ENFORCEABLE AS SUCH
AGAINST CREDITORS OF AND PURCHASERS (OTHER THAN AS EXPRESSLY PROVIDED IN SECTION
9-320 OF THE UCC) FROM BORROWER. OTHER THAN IN