Representations and Warranties by the Borrowers. BHSF represents and warrants that it has been designated as the agent of each of the other Borrowers [pursuant to their respective articles of incorporation and bylaws] for the purposes of incurring indebtedness on behalf of each such Borrower and making all necessary representations and warranties on behalf of each such Borrower in connection with such incurrence. BHSF makes the following additional representations and warranties on behalf of itself and of each of the other Borrowers as the basis for the covenants herein: (a) It is a not for profit corporation duly incorporated under the laws of the State, is in good standing and duly authorized to conduct its business in the State, is duly authorized and has full power under the laws of the State and all other applicable provisions of law and its articles of incorporation and bylaws to create, issue, enter into, execute and deliver this Loan Agreement, the Master Indenture, the Purchase Contract, the Escrow Agreement and the Tax Exemption Agreement and to approve (execute in the case of BHSF) the Series 2017 Obligation, and all action on its part necessary for the valid execution and delivery of this Loan Agreement, the Master Indenture, the Purchase Contract, the Escrow Agreement, the Tax Exemption Agreement and, in the case of BHSF, the Series 2017 Obligation have been duly and effectively taken; and the Series 2017 Obligation in the hands of the holder thereof will be the legal and valid obligation of BHSF and each other Member of the Obligated Group. (b) The execution and delivery of this Loan Agreement, the Master Indenture, the Purchase Contract, the Escrow Agreement, the Tax Exemption Agreement and the Series 2017 Obligation, and the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not conflict with or result in a breach of any of the terms or conditions of any corporate restriction or of any agreement or instrument to which such Borrower is now a party, and do not and will not constitute a default under any of the foregoing, or result in the creation or imposition of any Lien of any nature upon any of the Property of such Borrower, including Property which such Borrower subsequently acquires, except for Permitted Encumbrances; it has good and marketable fee simple title to its existing Property which constitutes real property and good and marketable title to its other Property, and covenants that it will have such title to Property which it subsequently acquires, in all cases free and clear of all Liens except Permitted Encumbrances; the easements, rights-of-way, Liens, encumbrances, covenants, conditions, restrictions, exceptions, defects, irregularities of title and encroachments on adjoining real estate, if any, now existing with respect to such Borrower’s Property do not and will not materially adversely affect the value of the Property currently affected thereby, materially impair such Property, or materially impair or materially interfere with the operation and usefulness thereof for the purpose for which it was acquired or is held by such Borrower; its Property does not violate any applicable zoning, land use, environmental or similar law or restriction; and the recitals of fact and statements contained in this Loan Agreement with respect to such Borrower are true. (c) No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened against such Borrower seeking to restrain, enjoin or in any way limit the approval or issuance and delivery of [the Official Statement or] the Bonds by the Authority or this Loan Agreement, the Master Indenture, the Purchase Contract, the Tax Exemption Agreement, the Escrow Agreement or, in the case of BHSF, the Series 2017 Obligation by such Borrower, or which would in any manner challenge or adversely affect the corporate existence or powers of such Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by such Borrower of the terms and provisions of this Loan Agreement, the Master Indenture, the Purchase Contract, [the Continuing Disclosure Agreement,] the Tax Exemption Agreement, the Escrow Agreement or the Series 2017 Obligation. In addition, [except as specifically described in the Official Statement,] no litigation, proceedings or investigations are pending or, to the knowledge of such Borrower, threatened against such Borrower except (i) litigation, proceedings or investigations involving claims for professional liability in which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of Independent Counsel, will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self-insurance, pooled risk insurance and shared risk insurance programs or (ii) litigation, proceedings or investigations involving other types of claims in which an adverse determination will not, in the opinion of Independent Counsel, have a material adverse effect on the operations or condition, financial or otherwise, of the Obligated Group. (d) It is a Tax-Exempt Organization; it has received a determination letter or letters from the Internal Revenue Service to the foregoing effect which are still in full force and effect; and it has no “unrelated business taxable income” as defined in Section 512 of the Code which could have a material adverse effect on the Borrower’s status as a Tax-Exempt Organization, or which, if such income were subject to federal income taxation, would have a material adverse effect on the condition, financial or otherwise, of the Obligated Group. (e) The audited consolidated balance sheets of Baptist Health South Florida, Inc. and Affiliates as of September 30, 2017 and 2016 and the audited consolidated statements of revenue and expenses and changes in cash, cash equivalents and board designated funds for each of the two years in the period ended September 30, 2017 [provided to the Initial Bank,] have been audited by Deloitte & Touche, LLP, independent auditors, for the periods indicated in their report thereon, which is included with such financial statements. The financial statements audited by Deloitte & Touche, LLP, present fairly, in all material respects, the financial position of the Obligated Group at September 30, 2017 and 2016, and the results of its operations and cash flows for each of the two years in the period ended September 30, 2017, in conformity with generally accepted accounting principles in use in the United States. There has been no material adverse change in the condition, financial or otherwise, of the Obligated Group since September 30, 2017 from that set forth in the financial statements included in such Appendix, except as disclosed in writing to the Authority [or the Initial Bank]. (f) Neither the financial statements referred to in paragraph (e) above, this Section 2.2 nor any written statement furnished by such Borrower to the Authority [(including the information contained in the Official Statement furnished by or on behalf of or relating to the Borrower)] contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein not misleading. The representations and warranties of such Borrower in the Tax Exemption Agreement are true and correct. There is no fact which such Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as such Borrower can now foresee, will materially adversely affect, the financial condition of the Obligated Group, any Member of the Obligated Group’s status as a Tax-Exempt Organization or the Obligated Group’s ability to own and operate its Property, or such Borrower’s ability to make the payments under this Loan Agreement or BHSF and the other Members of the Obligated Group’s ability to make the payments on the Series 2017 Obligation, in both cases when and as the same become due and payable. (g) It has not heretofore engaged in, and the consummation of the transactions herein provided for and compliance by such Borrower with the provisions of this Loan Agreement, the Series 2017 Obligation and the Tax Exemption Agreement will not involve, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (herein sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans” (as such term is defined in Section 3 of ERISA) (the “Plans”) maintained by such Borrower and no trusts created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of the Employment Retirement Income Security Act of 1974, as amended, and the present value of all benefits vested under the Plans did not exceed, as of the last annual valuation date, the value of the assets of the Plans allocable to such vested benefits. (h) It has all necessary material licenses and permits to occupy and operate its existing health care Facilities. (i) None of the proceeds of the Bonds will be used, directly or indirectly, to refund indebtedness the proceeds of which were used to pay, for the acquisition, construction, renovation, remodeling or equipping or any of the expenses of (i) any institution, place or building, or any portion thereof, used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or in connection with any part of the program of a school or department of divinity for any religious denomination or the training of ministers, priests, rabbis or other similar persons in the field of religion or (ii) any property which is owned or used or to be owned or used by a person which is not a Tax-Exempt Organization. (j) The representations, warranties and covenants contained in the Project Certificate are true and correct in all material respects as of the date thereof and are incorporated herein by reference.
Appears in 1 contract
Sources: Loan Agreement
Representations and Warranties by the Borrowers. BHSF represents and warrants that it has been designated as the agent of each Each of the other Borrowers [pursuant to their respective articles of incorporation represent and bylaws] for the purposes of incurring indebtedness on behalf of each such Borrower and making all necessary representations and warranties on behalf of each such Borrower in connection with such incurrence. BHSF makes the following additional representations and warranties on behalf of itself and of each of the other Borrowers warrant as the basis for the covenants hereinfollows:
(a) It TBC is a not for profit duly organized corporation duly incorporated under the laws of the State, is existing in good standing and duly authorized to conduct its business in the State, is duly authorized and has full power under the laws of the State of Delaware. Each Subsidiary Borrower is duly organized, validly existing and all other applicable provisions in good standing under the laws of law the jurisdiction of its organization, and its articles each of incorporation TBC and bylaws each Subsidiary Borrower is qualified to createdo business in every jurisdiction where such qualification is required, issue, enter into, execute and deliver this Loan Agreement, except where the Master Indenture, failure to so qualify would not have a material adverse effect on the Purchase Contract, the Escrow Agreement financial condition of TBC and the Tax Exemption Agreement and to approve (execute in the case of BHSF) the Series 2017 Obligation, and all action on its part necessary for the valid execution and delivery of this Loan Agreement, the Master Indenture, the Purchase Contract, the Escrow Agreement, the Tax Exemption Agreement and, in the case of BHSF, the Series 2017 Obligation have been duly and effectively taken; and the Series 2017 Obligation in the hands of the holder thereof will be the legal and valid obligation of BHSF and each other Member of the Obligated GroupSubsidiary Borrowers as a whole.
(b) The execution and delivery and the performance of the terms of this Loan Agreement, the Master IndentureNotes and each Guaranty are within the corporate powers of each Borrower party thereto, the Purchase Contracthave been duly authorized by all necessary corporate action, the Escrow Agreement, the Tax Exemption Agreement have received all necessary governmental approval (which approval remains in full force and the Series 2017 Obligation, and the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not conflict with or result in a breach of any of the terms or conditions of any corporate restriction or of any agreement or instrument to which such Borrower is now a partyeffect), and do not and will not constitute a default under contravene any law, any provision of the foregoing, Certificate of Incorporation or result in the creation or imposition By-Laws of any Lien of Borrower party thereto or any nature upon contractual restriction binding on any of the Property of such Borrower, including Property which such Borrower subsequently acquires, except for Permitted Encumbrances; it has good and marketable fee simple title to its existing Property which constitutes real property and good and marketable title to its other Property, and covenants that it will have such title to Property which it subsequently acquires, in all cases free and clear of all Liens except Permitted Encumbrances; the easements, rights-of-way, Liens, encumbrances, covenants, conditions, restrictions, exceptions, defects, irregularities of title and encroachments on adjoining real estate, if any, now existing with respect to such Borrower’s Property do not and will not materially adversely affect the value of the Property currently affected thereby, materially impair such Property, or materially impair or materially interfere with the operation and usefulness thereof for the purpose for which it was acquired or is held by such Borrower; its Property does not violate any applicable zoning, land use, environmental or similar law or restriction; and the recitals of fact and statements contained in this Loan Agreement with respect to such Borrower are trueparty thereto.
(c) No litigationThis Agreement and the Notes, proceedings or investigations are pending orwhen duly executed and delivered by each Borrower party thereto, to the knowledge of the Borrowerwill constitute legal, threatened against such Borrower seeking to restrain, enjoin or in any way limit the approval or issuance valid and delivery of [the Official Statement or] the Bonds by the Authority or this Loan Agreement, the Master Indenture, the Purchase Contract, the Tax Exemption Agreement, the Escrow Agreement or, in the case of BHSF, the Series 2017 Obligation by such Borrower, or which would in any manner challenge or adversely affect the corporate existence or powers of such Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by such Borrower of the terms and provisions of this Loan Agreement, the Master Indenture, the Purchase Contract, [the Continuing Disclosure Agreement,] the Tax Exemption Agreement, the Escrow Agreement or the Series 2017 Obligation. In addition, [except as specifically described in the Official Statement,] no litigation, proceedings or investigations are pending or, to the knowledge binding obligations of such Borrower, threatened enforceable against such Borrower except (i) litigationin accordance with their respective terms, proceedings or investigations involving claims for professional liability in which the probable ultimate recoveries and the estimated costs each Guaranty, when duly executed and expenses of defense, in the opinion of Independent Counseldelivered by TBC, will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not constitute a legal, valid and binding obligation of TBC, enforceable against TBC in excess of the total of the available assets held under applicable self-insurance, pooled risk insurance and shared risk insurance programs or (ii) litigation, proceedings or investigations involving other types of claims in which an adverse determination will not, in the opinion of Independent Counsel, have a material adverse effect on the operations or condition, financial or otherwise, of the Obligated Groupaccordance with its terms.
(d) It is a Tax-Exempt Organization; it has received a determination letter In TBC's opinion, there are no pending or letters from threatened actions or proceedings before any court or administrative agency which can reasonably be expected to materially adversely affect the Internal Revenue Service to the foregoing effect which are still in full force and effect; and it has no “unrelated business taxable income” as defined in Section 512 financial condition or operations of the Code which could have a material adverse effect on Company or of the Borrower’s status Company and its Subsidiaries, taken as a Tax-Exempt Organization, or which, if such income were subject to federal income taxation, would have a material adverse effect on the condition, financial or otherwise, of the Obligated Groupwhole.
(e) The audited consolidated balance sheets Consolidated statement of Baptist Health South Florida, Inc. and Affiliates financial position as of September 30December 31, 2017 and 2016 1998 and the audited consolidated statements related Consolidated statement of revenue earnings and expenses retained earnings for the year then ended (copies of which have been furnished to each Bank) correctly set forth the Consolidated financial condition of TBC and changes in cash, cash equivalents its Subsidiaries as of such date and board designated funds for each the result of the two years in the period ended September 30, 2017 [provided to the Initial Bank,] have been audited by Deloitte & Touche, LLP, independent auditors, Consolidated operations for the periods indicated in their report thereon, which is included with such financial statements. The financial statements audited by Deloitte & Touche, LLP, present fairly, in all material respects, the financial position of the Obligated Group at September 30, 2017 and 2016year, and the results of its operations and cash flows for each of the two years in the period ended September 30, 2017, in conformity with generally accepted accounting principles in use in the United States. There since such date there has been no material adverse change in such condition or operations which is likely to impair the condition, financial or otherwise, ability of TBC to repay the Obligated Group since September 30, 2017 from that set forth in the financial statements included in such Appendix, except as disclosed in writing to the Authority [or the Initial Bank]Advances.
(f) Neither No Borrower is engaged in the financial statements referred business of extending credit for the purpose of purchasing or carrying margin stock within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System, and no proceeds of any Advance will be used to in paragraph purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. Following application of the proceeds of each Advance, not more than 25 percent of the value of the assets (eeither of any Borrower only or of each Borrower and its subsidiaries on a consolidated basis) above, this Section 2.2 nor any written statement furnished by such Borrower subject to the Authority [provisions of Section 4.02(a) will be margin stock (including within the information contained in meaning of Regulation U issued by the Official Statement furnished by or on behalf Board of or relating to the Borrower)] contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein not misleading. The representations and warranties of such Borrower in the Tax Exemption Agreement are true and correct. There is no fact which such Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as such Borrower can now foresee, will materially adversely affect, the financial condition Governors of the Obligated Group, any Member of the Obligated Group’s status as a Tax-Exempt Organization or the Obligated Group’s ability to own and operate its Property, or such Borrower’s ability to make the payments under this Loan Agreement or BHSF and the other Members of the Obligated Group’s ability to make the payments on the Series 2017 Obligation, in both cases when and as the same become due and payableFederal Reserve System).
(g) It has not heretofore engaged inNo Borrower is an "investment company," or an "affiliated person" of, and or "promoter" or "principal underwriter" for, an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended. Neither the making of any Advances, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions herein provided for and compliance by contemplated hereby, will violate any provision of such Borrower with the provisions of this Loan AgreementAct or any rule, the Series 2017 Obligation and the Tax Exemption Agreement will not involve, any prohibited transaction within the meaning regulation or order of the Employee Retirement Income Security Act of 1974, as amended (herein sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans” (as such term is defined in Section 3 of ERISA) (the “Plans”) maintained by such Borrower Securities and no trusts created Exchange Commission thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of the Employment Retirement Income Security Act of 1974, as amended, and the present value of all benefits vested under the Plans did not exceed, as of the last annual valuation date, the value of the assets of the Plans allocable to such vested benefits.
(h) It has all necessary material licenses and permits to occupy and operate its existing health care Facilities.
(i) None of the proceeds of the Bonds will be used, directly or indirectly, to refund indebtedness the proceeds of which were used to pay, for the acquisition, construction, renovation, remodeling or equipping or any of the expenses of (i) any institution, place or building, or any portion thereof, used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or in connection with any part of the program of a school or department of divinity for any religious denomination or the training of ministers, priests, rabbis or other similar persons in the field of religion or (ii) any property which is owned or used or to be owned or used by a person which is not a Tax-Exempt Organization.
(j) The representations, warranties and covenants contained in the Project Certificate are true and correct in all material respects as of the date thereof and are incorporated herein by reference.
Appears in 1 contract