OF THE CLOSING DATE,
INCLUDING LOANS AND
46
LETTER OF CREDIT OBLIGATIONS TO BE MADE OR INCURRED ON THAT DATE, AND A FUNDS
FLOW MEMORANDUM DETAILING HOW FUNDS FROM EACH SOURCE ARE TO BE TRANSFERRED FOR
PARTICULAR USES.
(c)
None of Holdings, Borrower or any of its Subsidiaries is (i) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (ii) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
5.12
OWNERSHIP OF PROPERTY; LIENS.
AS OF THE CLOSING DATE, THE REAL
ESTATE ("REAL ESTATE") LISTED IN SCHEDULE 5.12 CONSTITUTES ALL OF THE REAL
PROPERTY OWNED, LEASED, SUBLEASED, OR USED BY ANY CREDIT PARTY.
EACH OF THE
CREDIT PARTIES OWNS GOOD AND MARKETABLE FEE SIMPLE TITLE TO ALL OF ITS OWNED
REAL ESTATE, AND VALID AND MARKETABLE LEASEHOLD INTERESTS IN ALL OF ITS LEASED
REAL ESTATE, ALL AS DESCRIBED ON SCHEDULE 5.12, AND COPIES OF EACH MATERIAL
LEASE OR A SUMMARY OF TERMS THEREOF REASONABLY SATISFACTORY TO AGENT HAVE BEEN
DELIVERED TO AGENT.
SCHEDULE 5.12 FURTHER DESCRIBES ANY REAL ESTATE WITH
RESPECT TO WHICH ANY CREDIT PARTY IS A LESSOR, SUBLESSOR OR ASSIGNOR AS OF THE
CLOSING DATE.
EACH OF THE CREDIT PARTIES AND EACH OF ITS SUBSIDIARIES ALSO HAS
GOOD AND MARKETABLE TITLE TO, OR VALID LEASEHOLD INTERESTS IN, ALL OF ITS
PERSONAL PROPERTY AND ASSETS.
AS OF THE CLOSING DATE, NONE OF THE PROPERTIES
AND ASSETS OF ANY CREDIT PARTY OR ANY OF ITS SUBSIDIARIES ARE SUBJECT TO ANY
LIENS OTHER THAN PERMITTED ENCUMBRANCES, AND THERE ARE NO FACTS, CIRCUMSTANCES
OR CONDITIONS KNOWN TO ANY RESPONSIBLE OFFICER OF BORROWER THAT MAY RESULT IN
ANY LIENS (INCLUDING LIENS ARISING UNDER ENVIRONMENTAL LAWS) OTHER THAN
PERMITTED ENCUMBRANCES AGAINST THE PROPERTIES OR ASSETS OF ANY CREDIT PARTY.
EACH OF THE CREDIT PARTIES HAS RECEIVED ALL DEEDS, ASSIGNMENTS, WAIVERS,
CONSENTS, NONDISTURBANCE AND ATTORNMENT OR SIMILAR AGREEMENTS, BILLS OF SALE AND
OTHER DOCUMENTS, AND HAS DULY EFFECTED ALL RECORDINGS, FILINGS AND OTHER ACTIONS
NECESSARY TO ESTABLISH, PROTECT AND PERFECT SUCH CREDIT PARTY'S RIGHT, TITLE AND
INTEREST IN AND TO ALL SUCH REAL ESTATE AND OTHER PROPERTIES AND ASSETS EXCEPT
WHERE THE FAILURE TO DO SO COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
SCHEDULE 5.12 ALSO DESCRIBES ANY PURCHASE OPTIONS, RIGHTS OF
FIRST REFUSAL OR OTHER SIMILAR CONTRACTUAL RIGHTS PERTAINING TO ANY REAL
ESTATE.
AS OF THE CLOSING DATE, NO PORTION OF ANY CREDIT PARTY'S REAL ESTATE
HAS SUFFERED ANY MATERIAL DAMAGE BY FIRE OR OTHER CASUALTY LOSS THAT HAS NOT
HERETOFORE BEEN REPAIRED AND RESTORED IN ALL MATERIAL RESPECTS TO ITS ORIGINAL
CONDITION OR OTHERWISE REMEDIED.
AS OF THE CLOSING DATE, ALL MATERIAL PERMITS
REQUIRED TO HAVE BEEN ISSUED OR APPROPRIATE TO ENABLE THE REAL ESTATE TO BE
LAWFULLY OCCUPIED AND USED FOR ALL OF THE PURPOSES FOR WHICH IT IS CURRENTLY
OCCUPIED AND USED HAVE BEEN LAWFULLY ISSUED AND ARE IN FULL FORCE AND EFFECT.
5.13
ENVIRONMENTAL MATTERS.
(A)