THE PERMANENT (OR TEMPORARY)
CERTIFICATE OF OCCUPANCY AND ALL OTHER MATERIAL OPERATING PERMITS FOR THE
PROJECT;
(D)
AGENT SHALL HAVE RECEIVED A FINAL AS BUILT SURVEY OF THE PROJECT
BY A SURVEYOR REASONABLY SATISFACTORY TO AGENT AND THE TITLE COMPANY IN THE FORM
OF THE SURVEYS OF THE PROPERTY DELIVERED TO AGENT AS OF THE CLOSING DATE (AS
REVISED THEREAFTER TO THE EXTENT REQUIRED UNDER THE LOAN DOCUMENTS) AND
OTHERWISE REASONABLY SATISFACTORY TO AGENT;
(E)
ENDORSEMENTS TO THE TITLE INSURANCE POLICY REFERENCING THE FINAL
AS BUILT SURVEY AND INDICATING NO LIENS OTHER THAN PERMITTED ENCUMBRANCES AND
INCLUDING AN UPDATE TO THE FORM 9 COMPREHENSIVE ENDORSEMENT, IN EACH CASE IN
FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO AGENT; AND
(F)
LENDERS SHALL HAVE RECEIVED PAYMENT FOR ANY AND ALL FEES PAYABLE
WITH RESPECT TO THE ADVANCE PURSUANT TO THE LOAN DOCUMENTS, INCLUDING (WITHOUT
LIMITATION) ALL FEES AND EXPENSES OF CONSTRUCTION CONSULTANT TO THE EXTENT THEN
DUE AND PAYABLE.
50
SECTION 4.
REPRESENTATIONS AND WARRANTIES
To induce Agent and Lenders to enter into the Loan Documents, to make Term Loan,
Borrower and the other Loan Parties executing this Agreement, jointly and
severally, represent, warrant and covenant to Agent and each Lender that the
following statements are and, after giving effect to the Related Transactions
will (with respect to Sections 4.1 through 4.9 and Sections 4.21 through 4.24)
remain true, correct and complete until the Termination Date with respect to all
Loan Parties.
4.1
Organization, Powers, Capitalization and Good Standing.
(A)
ORGANIZATION AND POWERS.
EACH OF THE LOAN PARTIES AND EACH OF
THEIR SUBSIDIARIES IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING
UNDER THE LAWS OF ITS JURISDICTION OF ORGANIZATION AND QUALIFIED TO DO BUSINESS
IN ALL STATES WHERE SUCH QUALIFICATION IS REQUIRED EXCEPT WHERE FAILURE TO BE SO
QUALIFIED OR BE IN GOOD STANDING WOULD NOT REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT.
THE JURISDICTION OF ORGANIZATION AND ALL JURISDICTIONS
IN WHICH EACH LOAN PARTY IS QUALIFIED TO DO BUSINESS AS OF THE CLOSING DATE ARE
SET FORTH ON SCHEDULE 4.1(A).
EACH OF THE LOAN PARTIES AND EACH OF THEIR
SUBSIDIARIES HAS ALL REQUISITE ORGANIZATIONAL POWER AND AUTHORITY TO OWN AND
OPERATE ITS PROPERTIES, TO CARRY ON ITS BUSINESS AS NOW CONDUCTED AND PROPOSED
TO BE CONDUCTED, TO ENTER INTO EACH LOAN DOCUMENT AND RELATED TRANSACTIONS
DOCUMENT TO WHICH IT IS A PARTY AND TO INCUR THE OBLIGATIONS, GRANT LIENS AND
SECURITY INTERESTS IN THE COLLATERAL AND CARRY OUT THE RELATED TRANSACTIONS.
(B)
CAPITALIZATION.
AS OF THE CLOSING DATE:
(I) THE AUTHORIZED STOCK
OF EACH OF THE LOAN PARTIES AND EACH OF THEIR SUBSIDIARIES IS AS SET FORTH ON
SCHEDULE 4.1(B); (II) ALL ISSUED AND OUTSTANDING STOCK OF EACH OF THE LOAN
PARTIES AND EACH OF THEIR SUBSIDIARIES IS DULY AUTHORIZED AND VALIDLY ISSUED,
FULLY PAID, NONASSESSABLE (AS APPLICABLE), FREE AND CLEAR OF ALL LIENS OTHER
THAN THOSE IN FAVOR OF AGENT FOR THE BENEFIT OF AGENT AND LENDERS, AND SUCH
STOCK WAS ISSUED IN COMPLIANCE WITH ALL APPLICABLE