IF THE GROUND LEASE IS TERMINATED FOR
ANY REASON, (D) THE NON-MERGER OF FEE AND LEASEHOLD INTERESTS, AND (E) THAT
INSURANCE PROCEEDS AND CONDEMNATION AWARDS WILL BE APPLIED PURSUANT TO THE TERMS
OF THIS AGREEMENT, AND (II) A GROUND LEASE ESTOPPEL, EXECUTED BY THE FEE OWNER
AND GROUND LESSOR OF THE SUBSTITUTE PROPERTY, IN FORM AND SUBSTANCE REASONABLY
ACCEPTABLE TO A PRUDENT INSTITUTIONAL MORTGAGE LOAN LENDER.
(FF)
INTENTIONALLY OMITTED.
(GG)
UPON THE SATISFACTION OF THE FOREGOING CONDITIONS
PRECEDENT, BORROWER WILL BE ENTITLED TO CAUSE MORTGAGE BORROWER TO OBTAIN THE
RELEASE OF THE LIEN OF THE MORTGAGE LOAN DOCUMENTS FROM THE RELEASE PROPERTY AND
THE SUBSTITUTE PROPERTY SHALL BE DEEMED TO BE AN INDIVIDUAL PROPERTY FOR
PURPOSES OF THIS AGREEMENT, AND (EXCEPT AS OTHERWISE PROVIDED IN THE PROVISO TO
THE LAST SENTENCE OF SECTION 2.9(H) HEREOF) THE SUBSTITUTE ALLOCATED LOAN AMOUNT
WITH RESPECT TO SUCH SUBSTITUTE PROPERTY SHALL BE DEEMED TO BE THE ALLOCATED
LOAN AMOUNT WITH RESPECT TO SUCH SUBSTITUTE PROPERTY FOR ALL PURPOSES HEREUNDER.
63
III.
MORTGAGE BORROWER DISTRIBUTIONS
Section 3.1
Mortgage Borrower
Distributions.
All transfers of Mortgage Borrower's funds to or for the benefit of Mezzanine A
Lender, Mezzanine A Borrower, Lender or Borrower, pursuant to this Agreement,
the Mortgage Loan Documents, the Mezzanine A Loan Documents or any of the other
Loan Documents, are intended by Borrower, Mortgage Borrower and Mezzanine A
Borrower to constitute and shall constitute distributions from Mortgage Borrower
to Mezzanine A Borrower and from Mezzanine A Borrower to Borrower, as
applicable, and, in each case, must comply with the requirements as to
distributions of the Delaware Revised Uniform Limited Partnership Act or the
Delaware Limited Liability Company Act, as applicable. No provision of the Loan
Documents shall create a debtor-creditor relationship between Borrower and any
of Mezzanine A Lender or Mortgage Lender.
IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1
Borrower Representations.
Borrower represents and warrants as of the Closing Date that:
4.1.1
Organization.
(A)
EACH BORROWER ENTITY IS DULY ORGANIZED AND
IS VALIDLY EXISTING AND IN GOOD STANDING IN THE JURISDICTION IN WHICH IT IS
ORGANIZED, WITH REQUISITE POWER AND AUTHORITY TO OWN THE ASSETS OWNED BY SUCH
BORROWER ENTITY AND TO TRANSACT THE BUSINESSES IN WHICH IT IS NOW ENGAGED. EACH
BORROWER ENTITY IS DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING IN THE
STATE OF DELAWARE. BORROWER POSSESSES ALL RIGHTS, LICENSES, PERMITS AND
AUTHORIZATIONS, GOVERNMENTAL OR OTHERWISE, NECESSARY TO ENTITLE IT TO OWN ITS
ASSETS AND TO TRANSACT THE BUSINESSES IN WHICH IT IS NOW ENGAGED. ATTACHED
HERETO AS SCHEDULE 4.1.1 IS AN ORGANIZATIONAL CHART OF BORROWER. EACH BORROWER
ENTITY HAS DELIVERED TO LENDER TRUE AND CORRECT COPIES OF THE APPLICABLE
MORTGAGE BORROWER FORMATION AGREEMENT AND ALL OTHER ORGANIZATIONAL DOCUMENTS FOR
THE APPLICABLE MORTGAGE BORROWER, MORTGAGE PRINCIPAL, MEZZANINE A BORROWER,
MEZZANINE A PRINCIPAL, BORROWER AND PRINCIPAL, ALL OF WHICH ARE IN FULL FORCE
AND EFFECT AS OF THE DATE HEREOF.
(B)
EACH BORROWER ENTITY HAS THE POWER AND
AUTHORITY AND THE REQUISITE OWNERSHIP INTEREST TO CONTROL THE ACTIONS OF