this Agreement:
(A)
GEOGRAPHICAL DIVERSIFICATION. THE MORTGAGED PROPERTIES IN THE
COLLATERAL POOL SATISFY THE GEOGRAPHICAL DIVERSIFICATION REQUIREMENTS.
(B)
PAYMENT OF EXPENSES.
THE PAYMENT BY BORROWER OF LENDER'S AND
FANNIE MAE'S REASONABLE THIRD PARTY OUT-OF-POCKET FEES AND EXPENSES PAYABLE IN
ACCORDANCE WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE LEGAL FEES
AND EXPENSES DESCRIBED IN SECTION 10.03.
(C)
NO MATERIAL ADVERSE CHANGE.
THERE HAS BEEN NO MATERIAL ADVERSE
CHANGE IN THE FINANCIAL CONDITION, BUSINESS OR PROSPECTS OF BORROWER OR KEY
PRINCIPAL IN THE PHYSICAL CONDITION, OPERATING PERFORMANCE OR VALUE OF ANY OF
THE MORTGAGED PROPERTIES (EXCLUDING ANY MORTGAGED PROPERTY WHICH IS REQUESTED TO
BE RELEASED) SINCE THE DATE OF THE MOST RECENT COMPLIANCE CERTIFICATE (OR, WITH
RESPECT TO THE CONDITIONS PRECEDENT TO THE TERM LOAN, FROM THE CONDITION,
BUSINESS OR PROSPECTS REFLECTED IN THE FINANCIAL STATEMENTS, REPORTS AND OTHER
9
INFORMATION OBTAINED BY LENDER DURING ITS REVIEW OF BORROWER AND KEY PRINCIPAL
AND THE INITIAL MORTGAGED PROPERTIES).
(D)
NO DEFAULT.
SUBJECT TO SECTION 8.25 AND THE LAST PARAGRAPH OF
SECTION 11.01, THERE SHALL EXIST NO EVENT OF DEFAULT OR POTENTIAL EVENT OF
DEFAULT IN EACH CASE UNDER SECTIONS 11.01(B)-(K) OR, IN ANY MATERIAL RESPECT,
UNDER SECTIONS 11.01(A), (L) OR (M) (IT BEING UNDERSTOOD AND AGREED THAT ANY
DEFAULT COMPARABLE TO THE EVENTS OF DEFAULT LISTED IN 11.01(B) - (K) IN THE
OTHER LOAN DOCUMENTS OR SUPPLEMENTAL LOAN DOCUMENTS WILL BE TREATED TO BE
MATERIAL) ON THE CLOSING DATE FOR THE REQUEST AND, AFTER GIVING EFFECT TO THE
TRANSACTION REQUESTED IN THE REQUEST, NO EVENT OF DEFAULT OR POTENTIAL EVENT OF
DEFAULT SHALL HAVE OCCURRED.
(E)
NO INSOLVENCY. RECEIPT BY LENDER ON THE CLOSING DATE FOR THE
REQUEST OF EVIDENCE SATISFACTORY TO LENDER THAT NEITHER BORROWER NOR KEY
PRINCIPAL IS INSOLVENT (WITHIN THE MEANING OF ANY APPLICABLE FEDERAL OR STATE
LAWS RELATING TO BANKRUPTCY OR FRAUDULENT TRANSFERS) OR WILL BE RENDERED
INSOLVENT BY THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, OR, AFTER
GIVING EFFECT TO SUCH TRANSACTIONS, WILL BE LEFT WITH AN UNREASONABLY SMALL
CAPITAL WITH WHICH TO ENGAGE IN ITS BUSINESS OR UNDERTAKINGS, OR WILL HAVE
INTENDED TO INCUR, OR BELIEVE THAT IT HAS INCURRED, DEBTS BEYOND ITS ABILITY TO
PAY SUCH DEBTS AS THEY MATURE OR WILL HAVE INTENDED TO HINDER, DELAY OR DEFRAUD
ANY EXISTING OR FUTURE CREDITOR.
(F)
NO UNTRUE STATEMENTS.
THE LOAN DOCUMENTS SHALL NOT CONTAIN ANY
UNTRUE OR MISLEADING STATEMENT OF A MATERIAL FACT AND SHALL NOT FAIL TO STATE A
MATERIAL FACT NECESSARY TO MAKE THE INFORMATION CONTAINED THEREIN NOT MISLEADING
EXCEPT IN RELATION TO A MORTGAGED PROPERTY WHICH IS REQUESTED TO BE RELEASED.
(G)
REPRESENTATIONS AND WARRANTIES.
ALL REPRESENTATIONS AND
WARRANTIES MADE BY BORROWER AND KEY PRINCIPAL IN THE LOAN DOCUMENTS SHALL BE
TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON THE CLOSING DATE FOR THE REQUEST
WITH THE SAME FORCE AND EFFECT AS IF SUCH REPRESENTATIONS AND WARRANTIES HAD
BEEN MADE ON AND AS OF THE CLOSING DATE FOR THE REQUEST EXCEPT IN RELATION TO A
MORTGAGED PROPERTY WHICH IS REQUESTED