HAVE BEEN ISSUED, ARE IN FULL FORCE AND
EFFECT AND ARE NOT SUBJECT TO ANY REVOCATION, AMENDMENT, RELEASE, SUSPENSION,
FORFEITURE OR THE LIKE.
EXCEPT FOR THE PENDING LITIGATIONS, THERE ARE NO
PENDING, OR TO THE KNOWLEDGE OF BORROWER, THREATENED IN WRITING, LITIGATIONS,
WRITS, INJUNCTIONS, ORDERS, JUDGMENTS, ACTIONS, SUITS OR PROCEEDINGS (A) TO
REVOKE, ATTACH, INVALIDATE, RESCIND OR MODIFY ANY SUCH GOVERNMENTAL APPROVAL OR
THIRD PARTY CONSENT OR APPROVAL, OR THE ZONING AND/OR RESTRICTIVE COVENANTS
APPLICABLE TO THE PREMISES OR ANY PART THEREOF, AS CURRENTLY EXISTING AND AS
INTENDED TO EXIST UPON COMPLETION OF SUCH CONTEMPLATED CONSTRUCTION OR (B) WHICH
HAVE ANY CHANCE (OTHER THAN AN IMMATERIAL CHANCE) OF BEING DETERMINED ADVERSELY
TO BORROWER, AND IF SO DETERMINED
66
ADVERSELY, WOULD MATERIALLY DELAY, INTERFERE WITH OR OTHERWISE HAVE ANY MATERIAL
ADVERSE EFFECT ON SUCH CONTEMPLATED CONSTRUCTION OR THE CONSTRUCTION SCHEDULE.
SECTION 6.07
ORGANIZATION STATUS AND AUTHORITY.
(A)
(I)
EACH OF
BORROWER AND THE MEMBERS IS A LIMITED LIABILITY COMPANY DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF NEW YORK; (II) EACH
OF BORROWER AND THE MEMBERS HAS THE POWER, AUTHORITY AND LEGAL RIGHT (W) TO OWN
AND OPERATE ITS PROPERTIES AND ASSETS, (X) TO CARRY ON THE BUSINESS NOW BEING
CONDUCTED AND PROPOSED TO BE CONDUCTED BY IT, (Y) TO EXECUTE, DELIVER AND
PERFORM ITS OBLIGATIONS UNDER THE PROJECT LOAN DOCUMENTS TO WHICH IT IS A PARTY,
AND (Z) TO ENGAGE IN THE TRANSACTIONS CONTEMPLATED BY THE PROJECT LOAN DOCUMENTS
TO WHICH IT IS A PARTY; (III) ALL PROJECT LOAN DOCUMENTS HAVE BEEN DULY
AUTHORIZED, EXECUTED AND DELIVERED BY ALL NECESSARY PARTIES ON BEHALF OF
BORROWER AND EACH MEMBER, TO THE EXTENT A PARTY THERETO; AND (IV) EACH OF
BORROWER AND THE MEMBERS POSSESSES ALL RIGHTS, LICENSES, PERMITS AND
AUTHORIZATIONS, GOVERNMENTAL OR OTHERWISE, PRESENTLY NECESSARY TO ENTITLE IT TO
OWN ITS PROPERTY AND TO TRANSACT THE BUSINESSES IN WHICH IT IS NOW ENGAGED, AND
ITS SOLE BUSINESS HAS BEEN AND IS THE OWNERSHIP OF THE MORTGAGED PROPERTY (IN
THE CASE OF BORROWER) OR A MEMBERSHIP INTEREST IN BORROWER (IN THE CASE OF EACH
MEMBER).
(B)
SUBJECT TO SECTION 7.32(B) HEREOF, (I) FC MEMBER, WHICH IS 100%
JOINTLY OWNED, DIRECTLY OR INDIRECTLY BY FC GUARANTOR, BRUCE RATNER, TRUSTS FOR
THE BENEFIT OF FAMILY MEMBERS OF BRUCE RATNER AND ING, IS, AND FOR THE TERM OF
THE PROJECT LOAN (SUBJECT TO SECTION 7.50 HEREOF) SHALL BE, A MEMBER OF
BORROWER, (II) NYTC MEMBER, WHICH IS 100% OWNED, DIRECTLY OR INDIRECTLY BY NYTC
GUARANTOR, IS, AND FOR THE TERM OF THE PROJECT LOAN (SUBJECT TO SECTION 7.46
HEREOF) SHALL BE, A MEMBER OF BORROWER, AND (III) THE MEMBERS OWN IN THE
AGGREGATE 100% OF THE MEMBERSHIP INTERESTS IN BORROWER.
SECTION 6.08
AVAILABILITY OF UTILITIES.
EXCEPT AS SET FORTH ON
SCHEDULE 3, ALL UTILITY SERVICES AND FACILITIES NECESSARY AND SUFFICIENT FOR THE
CONTEMPLATED CONSTRUCTION AND DEVELOPMENT OF THE PREMISES IN ACCORDANCE WITH THE
PUBLIC PROJECT AGREEMENTS AND THE PLANS AND SPECIFICATIONS AND, UPON COMPLETION
OF CONSTRUCTION, THE