OPERATION, USE AND OCCUPANCY OF THE PREMISES FOR ITS
INTENDED PURPOSES, INCLUDING, BUT NOT LIMITED TO, WATER SUPPLY, STORM AND
SANITARY SEWER FACILITIES, GAS, ELECTRIC AND TELEPHONE FACILITIES, AND DRAINAGE,
ARE PRESENTLY AVAILABLE TO THE BOUNDARIES OF THE PREMISES THROUGH DEDICATED
PUBLIC RIGHTS OF WAY OR THROUGH PERPETUAL PRIVATE EASEMENTS, APPROVED BY AGENT,
WITH RESPECT TO WHICH THE PROJECT LOAN MORTGAGE CREATES A VALID, BINDING AND
ENFORCEABLE FIRST PRIORITY LIEN AND SECURITY INTEREST.
SECTION 6.09
CONDITION OF PROPERTY.
SINCE THE EXECUTION AND
DELIVERY OF THE GROUND LEASE, THERE HAS NOT, TO THE KNOWLEDGE OF BORROWER, BEEN
ANY BODILY INJURY OR PROPERTY DAMAGE OCCURRING IN OR UPON THE PREMISES AS A
RESULT OF ANY FIRE, EXPLOSION, ACCIDENT, FLOOD OR OTHER CASUALTY.
WITH RESPECT
TO THE ACCIDENTS PREVIOUSLY DISCLOSED TO AGENT, BORROWER HEREBY REPRESENTS AND
WARRANTS THAT ALL SUCH ACCIDENTS ARE FULLY INSURED BY ITS POLICIES (EXCEPT FOR
THE DEDUCTIBLES APPLICABLE THERETO).
EXCEPT FOR MATTERS DISCLOSED TO AGENT IN
THE DISCLOSURE SIDE LETTER, THERE ARE NO PROCEEDINGS
67
PENDING, OR, TO THE KNOWLEDGE OF BORROWER, THREATENED OR CONTEMPLATED, TO
ACQUIRE BY POWER OF CONDEMNATION OR EMINENT DOMAIN, THE MORTGAGED PROPERTY, OR
ANY INTEREST THEREIN, OR TO ENJOIN OR SIMILARLY PREVENT THE CONTEMPLATED
CONSTRUCTION OR USE OF THE MORTGAGED PROPERTY.
SECTION 6.10
ACCURACY OF DOCUMENTS.
TO THE KNOWLEDGE OF BORROWER,
(A) ALL DOCUMENTS FURNISHED TO AGENT BY OR ON BEHALF OF ANY BORROWER ENTITY,
GENERAL CONTRACTOR, BORROWER'S ARCHITECTS, ANY OTHER MAJOR CONTRACTOR AND ANY
MAJOR SUBCONTRACTOR, AS PART OF OR IN SUPPORT OF THE PROJECT LOAN APPLICATION OR
PURSUANT TO THIS AGREEMENT OR ANY OF THE OTHER PROJECT LOAN DOCUMENTS, ARE TRUE,
CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS AS OF THE DATE OF DELIVERY OF EACH
SUCH DOCUMENT AND (B) AS OF THE CLOSING DATE, THERE HAVE BEEN NO MATERIAL
ADVERSE CHANGES WITH RESPECT TO SUCH MATTERS SINCE SUCH DATE, UNLESS THE SAME
HAVE BEEN SUPERSEDED BY MORE RECENT DATED MATERIAL(S) DELIVERED TO AGENT.
SECTION 6.11
ENCROACHMENTS.
THERE ARE NO MATERIAL ENCROACHMENTS
ON THE PREMISES, AND THE PREMISES DO NOT ENCROACH UPON ANY ADJOINING LAND OR
ADJOINING STREET, OTHER THAN AS SET FORTH IN THE PERMITTED EXCEPTIONS.
SECTION 6.12
BROKERAGE COMMISSIONS.
ANY BROKERAGE COMMISSIONS,
FINDER'S FEES OR SIMILAR PAYMENTS OWED BY ANY BORROWER ENTITY (COLLECTIVELY, THE
"BROKERAGE COMMISSIONS") DUE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY HAVE BEEN PAID TO THE EXTENT DUE AND PAYABLE AND ANY SUCH BROKERAGE
COMMISSIONS COMING DUE IN THE FUTURE WILL BE PROMPTLY PAID BY SUCH BORROWER
ENTITY.
AGENT REPRESENTS AND WARRANTS TO BORROWER THAT IT HAS NOT DEALT WITH
ANY BROKER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 6.13
FINANCIAL STATEMENTS AND OTHER INFORMATION.
THE
FINANCIAL STATEMENTS AND SUPPORTING MATERIALS THERETO (OTHER THAN PROJECTIONS)
OF EACH BORROWER ENTITY PREVIOUSLY DELIVERED TO AGENT, IF ANY, ARE TRUE AND
CORRECT AS OF THE DATE OF EACH SUCH STATEMENT, HAVE BEEN PREPARED AS OF THE DATE
OF EACH SUCH STATEMENT IN ACCORDANCE WITH GENERALLY ACCEPTABLE ACCOUNTING
PRINCIPLES CONSISTENTLY APPLIED, AND FAIRLY PRESENT THE RESPECTIVE FINANCIAL
CONDITIONS OF