DUE AND PAYABLE MONTHLY IN THE SAME MANNER AS THE
LOAN AND, IF THE MEZZANINE LOAN IS A VARIABLE RATE LOAN, SUCH SPREAD SHALL NOT
BE SUBJECT TO ADJUSTMENT, OR, IF THE MEZZANINE LOAN IS A FIXED RATE LOAN, SUCH
INTEREST RATE SHALL NOT BE SUBJECT TO ADJUSTMENT.
(XVI)
MEZZANINE BORROWER SATISFIES SUCH OTHER CONDITIONS AS ARE CUSTOMARY
IN CONNECTION WITH MEZZANINE LOANS AND DELIVERS SUCH OTHER DOCUMENTS,
AGREEMENTS, CERTIFICATES AND LEGAL OPINIONS (INCLUDING BUT NOT LIMITED TO A
REVISED INSOLVENCY OPINION WHICH SHALL BE IN FORM, SCOPE AND SUBSTANCE
REASONABLY ACCEPTABLE IN ALL RESPECTS TO LENDER AND THE RATING AGENCIES) AS
LENDER SHALL REASONABLY REQUEST;
(XVII)
BORROWER SHALL EXECUTE ANY AMENDMENTS TO THE LOAN DOCUMENTS THAT
LENDER SHALL REASONABLY REQUIRE IN ORDER TO EVIDENCE THE MEZZANINE LOAN AND ANY
OPINIONS THAT LENDER SHALL REASONABLY REQUIRE IN CONNECTION WITH SUCH
AMENDMENTS, INCLUDING, WITHOUT LIMITATION, APPLICABLE DUE EXECUTION AND
ENFORCEABILITY OPINIONS.
(XVIII)
THE MEZZANINE BORROWER AND ANY OTHER PLEDGORS, IF ANY, OF INTERESTS
IN BORROWER, SHALL BE STRUCTURED INTO THE ORGANIZATIONAL STRUCTURE OF BORROWER
IN A MANNER SUCH AS NOT TO ADVERSELY AFFECT THE BANKRUPTCY REMOTE NATURE OF
BORROWER AND SHALL COMPLY WITH RATING
23
AGENCY CRITERIA, AND ALL ORGANIZATIONAL DOCUMENTS OF BORROWER SHALL BE REVISED
TO THE REASONABLE SATISFACTION OF LENDER.
(XIX)
ALL REASONABLE COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS'
FEES AND ANY FEES CHARGED BY THE RATING AGENCIES AND ANY SERVICERS) INCURRED BY
LENDER IN CONNECTION WITH THIS SECTION 2.6 SHALL BE PAID BY BORROWER.
III.
REPRESENTATIONS AND WARRANTIES
Section 3.1
Borrower Representations.
Borrower represents and
warrants that:
3.1.1
Organization.
(a) Borrower is duly organized, validly existing and
in good standing with full power and authority to own its assets and conduct its
business, and is duly qualified in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on its ability to perform its obligations hereunder, and
Borrower has taken all necessary action to authorize the execution, delivery and
performance of this Agreement and the other Loan Documents by it, and has the
power and authority to execute, deliver and perform under this Agreement, the
other Loan Documents and all the transactions contemplated hereby.
(B)
BORROWER'S EXACT LEGAL NAME IS CORRECTLY SET FORTH IN THE FIRST
PARAGRAPH OF THIS AGREEMENT. BORROWER IS AN ORGANIZATION OF THE TYPE SPECIFIED
IN THE FIRST PARAGRAPH OF THIS AGREEMENT. BORROWER IS INCORPORATED OR ORGANIZED
UNDER THE LAWS OF THE STATE SPECIFIED IN THE FIRST PARAGRAPH OF THIS AGREEMENT.
BORROWER'S PRINCIPAL PLACE OF BUSINESS AND CHIEF EXECUTIVE OFFICE, AND THE PLACE
WHERE BORROWER KEEPS ITS BOOKS AND RECORDS, INCLUDING RECORDED DATA OF ANY KIND
OR NATURE, REGARDLESS OF THE MEDIUM OF RECORDING, INCLUDING SOFTWARE, WRITINGS,
PLANS, SPECIFICATIONS AND SCHEMATICS, HAS BEEN FOR THE PRECEDING FOUR (4) MONTHS
(OR, IF LESS THAN FOUR (4) MONTHS, THE ENTIRE PERIOD OF THE EXISTENCE OF
BORROWER) AND WILL CONTINUE TO BE