FORMATION.
GKK QUALIFIES FOR TAXATION AS A REAL ESTATE INVESTMENT TRUST UNDER
SECTION 856 OF THE CODE AND HAS ELECTED TO BE TREATED AS A REAL ESTATE
INVESTMENT TRUST PURSUANT TO THE CODE.
(II)
THIS AMENDMENT AND THE OTHER TRANSACTION DOCUMENTS HAVE BEEN DULY
EXECUTED BY AN AUTHORIZED OFFICER OF EACH AMENDMENT PARTY.
(III)
THE EXECUTION, DELIVERY, AND PERFORMANCE OF THIS AMENDMENT AND
THE OTHER TRANSACTION DOCUMENTS BY THE AMENDMENT PARTIES HAVE BEEN DULY
AUTHORIZED BY ALL NECESSARY LIMITED LIABILITY COMPANY, LIMITED PARTNERSHIP OR
CORPORATE ACTION (AS APPLICABLE), REQUIRE NO GOVERNMENTAL APPROVAL, AND WILL
NEITHER CONTRAVENE, CONFLICT WITH, NOR RESULT IN THE BREACH OF ANY LAW, CHARTER,
ARTICLES, OR CERTIFICATE OF INCORPORATION, ORGANIZATION OR FORMATION, BYLAWS,
OPERATING AGREEMENT, LIMITED PARTNERSHIP AGREEMENT OR OTHER AGREEMENT, CONTRACT
OR INDENTURE GOVERNING OR BINDING UPON ANY OF THE AMENDMENT PARTIES OR ANY OF
THEIR RESPECTIVE ASSETS.
(IV)
THIS AMENDMENT AND THE OTHER TRANSACTION DOCUMENTS ARE VALID AND
LEGALLY BINDING OBLIGATIONS OF EACH OF THE AMENDMENT PARTIES, ENFORCEABLE IN
ACCORDANCE WITH THE RESPECTIVE TERMS AND PROVISIONS HEREOF AND THEREOF, EXCEPT
AS ENFORCEABILITY IS LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER LAWS RELATING TO OR AFFECTING GENERALLY THE ENFORCEMENT OF
CREDITORS' RIGHTS AND EXCEPT TO THE EXTENT THAT AVAILABILITY OF THE REMEDY OF
SPECIFIC ENFORCEMENT OR INJUNCTIVE RELIEF IS SUBJECT TO THE DISCRETION OF THE
COURT BEFORE WHICH ANY PROCEEDING THEREFOR MAY BE BROUGHT.
(V)
OWNERS OF DEDICATED CDO SECURITIES HAVE ALL RIGHTS, TITLE AND
INTEREST IN AND TO THE DEDICATED CDO SECURITIES CASH FLOW FREE AND CLEAR OF ANY
LIEN, ENCUMBRANCE, SECURITY INTEREST, PLEDGE, CHARGE OR OTHER RESTRICTION OF ANY
KIND (OTHER THAN AS SET FORTH IN THE APPLICABLE INDENTURE GOVERNING THE
DEDICATED CDO SECURITIES) AND HAVE THE AUTHORITY, RIGHT AND ABILITY TO DIRECT
THE DEDICATED CDO SECURITIES CASH FLOWS TO THE AGENT AS CONTEMPLATED IN THIS
AMENDMENT.
TO THE REASONABLE KNOWLEDGE OF THE OWNERS OF DEDICATED CDO
SECURITIES, THERE IS NO FINANCING STATEMENT, SECURITY AGREEMENT, CHATTEL
MORTGAGE, OR OTHER DOCUMENT FILED OR RECORDED
8
WITH ANY FILING RECORDS, REGISTRY, OR OTHER PUBLIC OFFICE, THAT PURPORTS TO
COVER, AFFECT OR GIVE NOTICE OF ANY PRESENT OR POSSIBLE FUTURE LIEN ON, OR
SECURITY INTEREST OR SECURITY TITLE IN ANY DEDICATED CDO SECURITIES OR DEDICATED
CDO SECURITIES CASH FLOW OR RIGHTS THEREUNDER.
(VI)
SUBSEQUENT TO THIS AMENDMENT, THE OBLIGATIONS (TO THE EXTENT THAT
THERE MAY BE RECOURSE TO THE BORROWER WITH RESPECT THERETO) SHALL CONSTITUTE
SENIOR OBLIGATIONS OF THE BORROWER WHICH ARE PARI PASSU WITH ALL OTHER UNSECURED
SENIOR INDEBTEDNESS OF THE BORROWER.
(B)
COVENANTS:
THE BORROWER AND THE OWNERS OF
DEDICATED CDO SECURITIES HEREBY COVENANT FOR THE BENEFIT OF THE AGENT AND THE
BANKS AS FOLLOWS:
(I)
THE BORROWER AND EACH OWNER OF DEDICATED CDO SECURITIES WILL USE
COMMERCIALLY REASONABLE EFFORTS TO PRESERVE AND KEEP IN FULL FORCE AND EFFECT
ITS LEGAL EXISTENCE, TO PRESERVE AND KEEP IN FULL FORCE AND EFFECT ALL OF ITS
RIGHTS AND FRANCHISES.
(II)
NEITHER THE BORROWER NOR ANY OWNER OF DEDICATED CDO SECURITIES
SHALL TRANSFER, ASSIGN OR OTHERWISE