PERMITTED ENCUMBRANCES, AND IS ENFORCEABLE AS SUCH AGAINST CREDITORS
OF AND PURCHASERS FROM BORROWER.
OTHER THAN IN CONNECTION WITH THE LOAN
DOCUMENTS AND EXCEPT FOR PERMITTED ENCUMBRANCES, BORROWER HAS NOT SOLD,
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PLEDGED, TRANSFERRED OR OTHERWISE CONVEYED THE CLEARING ACCOUNT AND CASH
MANAGEMENT ACCOUNT ;
(B)
EACH OF THE CLEARING ACCOUNT AND CASH MANAGEMENT ACCOUNT
CONSTITUTE "DEPOSIT ACCOUNTS" AND/OR "SECURITIES ACCOUNTS" WITHIN THE MEANING OF
THE UNIFORM COMMERCIAL CODE OF THE STATE OF NEW YORK);
(C)
PURSUANT AND SUBJECT TO THE TERMS HEREOF AND THE OTHER APPLICABLE
LOAN DOCUMENTS, THE CLEARING BANK AND AGENT HAVE AGREED TO COMPLY WITH ALL
INSTRUCTIONS ORIGINATED BY LENDER, WITHOUT FURTHER CONSENT BY BORROWER,
DIRECTING DISPOSITION OF THE CLEARING ACCOUNT AND CASH MANAGEMENT ACCOUNT AND
ALL SUMS AT ANY TIME HELD, DEPOSITED OR INVESTED THEREIN, TOGETHER WITH ANY
INTEREST OR OTHER EARNINGS THEREON, AND ALL PROCEEDS THEREOF (INCLUDING PROCEEDS
OF SALES AND OTHER DISPOSITIONS), WHETHER ACCOUNTS, GENERAL INTANGIBLES, CHATTEL
PAPER, DEPOSIT ACCOUNTS, INSTRUMENTS, DOCUMENTS OR SECURITIES; AND
(D)
THE CLEARING ACCOUNT AND CASH MANAGEMENT ACCOUNT ARE NOT IN THE
NAME OF ANY PERSON OTHER THAN BORROWER, AS PLEDGOR, OR LENDER, AS PLEDGEE.
BORROWER HAS NOT CONSENTED TO THE CLEARING BANK AND AGENT COMPLYING WITH
INSTRUCTIONS WITH RESPECT TO THE CLEARING ACCOUNT AND CASH MANAGEMENT ACCOUNT
FROM ANY PERSON OTHER THAN LENDER.
4.1.39
FRANCHISE AGREEMENT.
EACH FRANCHISE AGREEMENT IS IN FULL FORCE AND
EFFECT AND THERE IS NO DEFAULT THEREUNDER BY ANY PARTY THERETO AND NO EVENT HAS
OCCURRED THAT, WITH THE PASSAGE OF TIME AND/OR GIVING OF NOTICE, WOULD
CONSTITUTE A DEFAULT THEREUNDER.
4.1.40
GROUND LEASE.
BORROWER HEREBY REPRESENTS AND WARRANTS TO LENDER THE
FOLLOWING WITH RESPECT TO THE GROUND LEASE:
(A)
RECORDING; MODIFICATION.
A MEMORANDUM OF THE GROUND LEASE HAS
BEEN DULY RECORDED.
THERE HAVE NOT BEEN AMENDMENTS OR MODIFICATIONS TO THE
TERMS OF THE GROUND LEASE SINCE RECORDATION OF THE GROUND LEASE (OR A MEMORANDA
THEREOF), WITH THE EXCEPTION OF WRITTEN INSTRUMENTS WHICH HAVE BEEN RECORDED.
THE GROUND LESSOR HAS EXECUTED THE WESTBURY MORTGAGE AND THE FEE ESTATE IN THE
WESTBURY PROPERTY IS ENCUMBERED THEREBY.
(B)
NO LIENS.
EXCEPT FOR THE PERMITTED ENCUMBRANCES AND OTHER
ENCUMBRANCES OF RECORD, WESTBURY BORROWER'S INTEREST IN THE GROUND LEASE IS NOT
SUBJECT TO ANY LIENS OR ENCUMBRANCES SUPERIOR TO, OR OF EQUAL PRIORITY WITH, THE
WESTBURY MORTGAGE OTHER THAN THE GROUND LESSOR'S RELATED FEE INTEREST.
(C)
DEFAULT.
AS OF THE DATE HEREOF, THE GROUND LEASE IS IN FULL FORCE
AND EFFECT AND NO DEFAULT HAS OCCURRED UNDER THE GROUND LEASE AND THERE IS NO
EXISTING CONDITION WHICH, BUT FOR THE PASSAGE OF TIME OR THE GIVING OF NOTICE,
COULD RESULT IN A DEFAULT UNDER THE TERMS OF THE GROUND LEASE.
(D)
TERM.
THE TERM OF THE GROUND LEASE EXTENDS TO DECEMBER 23, 2014.
4.1.41
FRAUDULENT TRANSFER.
IT IS THE INTENTION OF ALL INDIVIDUAL
BORROWERS THAT THE OBLIGATIONS OF EACH INDIVIDUAL BORROWER UNDER THE NOTE OR
THIS AGREEMENT SHALL NOT CONSTITUTE A FRAUDULENT TRANSFER OR CONVEYANCE UNDER
ANY FEDERAL OR STATE FRAUDULENT TRANSFER OR CONVEYANCE
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