SUBJECT ONLY TO APPLICABLE BANKRUPTCY,
INSOLVENCY AND SIMILAR LAWS AFFECTING RIGHTS OF CREDITORS GENERALLY, AND
SUBJECT, AS TO ENFORCEABILITY, TO GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF
WHETHER ENFORCEMENT IS SOUGHT IN A PROCEEDING IN EQUITY OR AT LAW).
4.1.3
NO CONFLICTS.
THE EXECUTION, DELIVERY AND PERFORMANCE
OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY BORROWER WILL NOT CONFLICT
WITH OR RESULT IN A BREACH OF ANY OF THE TERMS OR PROVISIONS OF, OR CONSTITUTE A
DEFAULT UNDER, OR RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR
ENCUMBRANCE (OTHER THAN PURSUANT TO THE LOAN DOCUMENTS) UPON ANY OF THE PROPERTY
OR ASSETS OF BORROWER PURSUANT TO THE TERMS OF ANY INDENTURE, MORTGAGE, DEED OF
TRUST, LOAN AGREEMENT, PARTNERSHIP AGREEMENT, OR OTHER AGREEMENT OR INSTRUMENT
TO WHICH BORROWER IS A PARTY OR BY WHICH ANY OF BORROWER'S PROPERTY OR ASSETS IS
SUBJECT, NOR TO BORROWER'S KNOWLEDGE WILL SUCH ACTION RESULT IN ANY VIOLATION OF
THE PROVISIONS OF ANY STATUTE OR ANY ORDER, RULE OR REGULATION OF ANY
GOVERNMENTAL AUTHORITY HAVING JURISDICTION OVER BORROWER OR ANY OF BORROWER'S
PROPERTIES OR ASSETS, AND ANY CONSENT, APPROVAL, AUTHORIZATION, ORDER,
REGISTRATION OR QUALIFICATION OF OR WITH ANY COURT OR ANY SUCH GOVERNMENTAL
AUTHORITY REQUIRED FOR THE EXECUTION, DELIVERY AND PERFORMANCE BY BORROWER OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS HAS BEEN OBTAINED AND IS IN FULL
FORCE AND EFFECT.
4.1.4
LITIGATION.
TO BORROWER'S KNOWLEDGE, THERE ARE NO
ACTIONS, SUITS OR PROCEEDINGS AT LAW OR IN EQUITY BY OR BEFORE ANY GOVERNMENTAL
AUTHORITY OR OTHER AGENCY NOW PENDING OR THREATENED AGAINST OR AFFECTING
BORROWER, GUARANTOR, PRINCIPAL OR THE PROPERTY, WHICH ACTIONS, SUITS OR
PROCEEDINGS, IF DETERMINED AGAINST BORROWER, GUARANTOR, PRINCIPAL OR THE
35
PROPERTY, MIGHT MATERIALLY ADVERSELY AFFECT THE CONDITION (FINANCIAL OR
OTHERWISE) OR BUSINESS OF BORROWER, GUARANTOR, PRINCIPAL OR THE CONDITION OR
OWNERSHIP OF THE PROPERTY.
4.1.5
AGREEMENTS.
EXCEPT SUCH INSTRUMENTS AND AGREEMENTS
SET FORTH AS PERMITTED ENCUMBRANCES IN THE TITLE INSURANCE POLICY, BORROWER IS
NOT A PARTY TO ANY AGREEMENT OR INSTRUMENT OR SUBJECT TO ANY RESTRICTION WHICH
MIGHT MATERIALLY AND ADVERSELY AFFECT BORROWER OR THE PROPERTY, OR BORROWER'S
BUSINESS, PROPERTIES OR ASSETS, OPERATIONS OR CONDITION, FINANCIAL OR
OTHERWISE.
TO BORROWER'S KNOWLEDGE, BORROWER IS NOT IN DEFAULT IN ANY MATERIAL
RESPECT IN THE PERFORMANCE, OBSERVANCE OR FULFILLMENT OF ANY OF THE OBLIGATIONS,
COVENANTS OR CONDITIONS CONTAINED IN ANY AGREEMENT OR INSTRUMENT TO WHICH IT IS
A PARTY OR BY WHICH BORROWER OR THE PROPERTY IS BOUND.
BORROWER HAS NO MATERIAL
FINANCIAL OBLIGATION UNDER ANY INDENTURE, MORTGAGE, DEED OF TRUST, LOAN
AGREEMENT OR OTHER AGREEMENT OR INSTRUMENT TO WHICH BORROWER IS A PARTY OR BY
WHICH BORROWER OR THE PROPERTY IS OTHERWISE BOUND, OTHER THAN (A) OBLIGATIONS
INCURRED IN THE ORDINARY COURSE OF THE OPERATION OF THE PROPERTY AS PERMITTED
PURSUANT TO CLAUSE (XXIII) OF THE DEFINITION OF "SPECIAL PURPOSE ENTITY" SET
FORTH IN SECTION 1.1 HEREOF AND (B) OBLIGATIONS UNDER THE LOAN DOCUMENTS.
4.1.6
TITLE.
BORROWER HAS GOOD AND INDEFEASIBLE FEE SIMPLE
TITLE TO THE REAL PROPERTY COMPRISING PART