Continuing Representations These representations shall be considered to have been made again at and as of the date of each disbursement of the Loan and shall be true and correct as of such date or dates.
Representations and Warranties of the Borrowers Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such Borrower has not incurred, and does not presently expect to incur, any withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such Borrower and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plans, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established or maintained, or to which contributions are or have been made or should be made according to the terms of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Representations of the Borrower The Borrower represents and warrants to the Administrative Agent and the Lenders that:
(a) Each of the Borrower and each Subsidiary has been duly formed and is validly existing and in good standing under the laws of the jurisdiction of its organization and is qualified to do business as a foreign entity and is in good standing in each jurisdiction of the United States in which the ownership of its properties or the conduct of its business requires such qualification and where the failure to so qualify would constitute a Material Adverse Change.
(b) Each Loan Document has been duly authorized, executed and delivered by the Borrower and such Loan Document constitutes a valid and binding agreement of the Borrower, enforceable in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law). There are no actions, suits or proceedings pending or, to the knowledge of the Borrower or any Subsidiary, threatened against the Borrower or any Subsidiary which purport to affect the legality, validity or enforceability of this Agreement or any other Loan Document.
(c) The execution, delivery and performance of each Loan Document by the Borrower will not violate or conflict with (i) the organizational documents of the Borrower or any Subsidiary, as in effect on the Effective Date or (ii) any indenture, loan agreement or other similar agreement or instrument binding on the Borrower or any Subsidiary.
(d) The Borrower, its Subsidiaries and the ▇▇▇ Entities are in compliance with all laws, rules, regulations, orders, decrees and requirements of any Governmental Authority applicable to them or their properties, except where the necessity of compliance therewith is being contested in good faith by appropriate proceedings or such failure to comply would not have or would not reasonably be expected to cause a Material Adverse Change. None of the Borrower, its Subsidiaries or the ▇▇▇ Entities, nor, to the knowledge of the Borrower or any of its Subsidiaries, any director, officer, agent, employee or Affiliate of the Borrower, is in violation of any applicable Anti-Corruption Law, including without limitation the FCPA, in any material respect. None of the Borrower, its Subsidiaries or the ▇▇▇ Entities, nor, to the knowledge of the Borrower or any of its Subsidiaries, any director, officer, agent, employee or Affiliate of the Borrower, is in violation of any of the country or list based economic and trade sanctions administered and enforced by OFAC. None of the Borrower, its Subsidiaries or the ▇▇▇ Entities, nor, to the knowledge of the Borrower or any of its Subsidiaries, any director, officer, agent, employee or Affiliate of the Borrower, (i) is a Sanctioned Person or a Sanctioned Entity, (ii) has more than ten percent (10%) of its assets located in Sanctioned Entities, or (iii) derives more than 10% of its operating income from investments in, or transactions with, Sanctioned Persons or Sanctioned Entities.
(e) On the Effective Date there are no actions, suits, proceedings or investigations pending or, to the knowledge of the Borrower, threatened against the Borrower, any Subsidiary or ▇▇▇ before any Governmental Authority as to which, in the opinion of the Borrower, there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to constitute a Material Adverse Change.
(f) The consolidated balance sheets of the Borrower (and its predecessor entity) and its consolidated Subsidiaries as of December 31, 2015, and the related consolidated statements of income, partners’ (or stockholders’) equity and cash flows for each of the years in the three-year period ended December 31, 2015, audited by KPMG LLP, present fairly, in all material respects, the consolidated financial position of the Borrower and its consolidated Subsidiaries as of December
Continuing Representations and Warranties The Borrowers jointly and severally represent and warrant to each Creditor that:
Representations and Warranties of the Borrower The Borrower represents and warrants to the Lender that:
(a) it has been duly incorporated, validly exists and is in good standing under the jurisdiction of its incorporation and each jurisdiction where it carries on business and has been duly licensed to carry on business in all jurisdictions where it is carrying on business;
(b) it has the power and authority to enter into, execute and deliver and to keep, observe and perform all of the covenants, agreements and other obligations made by or imposed on it under this Agreement and the Promissory Note (collectively, the “Loan Documents”);
(c) the Loan Documents and all other instruments and agreements delivered by the borrower to the Lender pursuant to this Agreement have been or will be validly executed by it or on its behalf and, when delivered to the Lender, will be legal, valid and binding obligations of it, enforceable in accordance with their respective terms, except as enforcement may be limited by;
(i) applicable bankruptcy, insolvency, moratorium, reorganization and similar laws at the time in effect affecting the rights of creditors generally; and
(ii) equitable principles which may limit the availability of certain remedies, including the remedy of specific performance;
(d) the execution, delivery and performance by it of the Loan Documents does not contravene any material provision of any regulation, order or permit applicable to it, or cause a breach of or constitute a default under or require any consent under any agreement or instrument to which it is a party or by which it is bound except such as have been obtained;
(e) there are no suits or judicial proceedings or proceedings before any governmental commission, board or other agency, actual, pending or to its knowledge threatened against it which involves a significant risk of a judgment or liability which, if satisfied, would have an adverse effect upon its financial position or the ability to meet its obligations under this Agreement or to grant the Loan Documents;
(f) it is not in default under any guarantee, note or other instrument evidencing any indebtedness, other than as disclosed in writing to the Lender by the Borrower, and to its knowledge there exists no state of facts which, after notice or lapse of time or both or otherwise, would constitute such a default; and
(g) no event is outstanding which constitutes, or with notice or lapse of time or both would constitute, an Event of Default (as defined below).