Common use of Representations and Warranties by Borrower Clause in Contracts

Representations and Warranties by Borrower. Applicant agrees that the following representations and warranties will be correct at Closing, and Borrower will be deemed to repeat and reaffirm the same at Closing: (a) Borrower shall have the requisite power and authority under its organizational documents to execute and deliver the Loan Documents, to perform Borrower’s obligations under the Loan Documents and to consummate the transaction contemplated by this Agreement and shall have taken any necessary action to authorize the execution and delivery of the Loan Documents, the performance of Borrower’s obligations under the Loan Documents and the consummation of the transaction contemplated by this Agreement and shall be otherwise in compliance with all applicable Law (defined herein). (b) Borrower shall not be an “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”) that is subject to Title I of ERISA or a “plan” as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended, and the related Treasury Regulations (the “Code”) that is subject to Section 4975 of the Code, and the assets of Borrower shall not constitute “plan assets” of one or more such plans for purposes of Title I of ERISA or Section 4975 of the Code. (c) Borrower shall not be a “governmental plan” within the meaning of Section 3(32) of ERISA and transactions by or with Borrower shall not be subject to any laws regulating investments of and fiduciary obligations with respect to governmental plans. (d) None of Borrower, Guarantor or Indemnitor or any of their respective Affiliates (defined herein) (i) shall be during the Term in violation of any laws relating to terrorist acts, acts of war and money laundering (the “Anti-Terrorism Laws”), or (ii) shall be a “Prohibited Person” as defined under the Anti-Terrorism Laws or will be identified as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website xxxx://xxx.xxxxx.xxx/ofac/tll_sdn.pdf or at any replacement website or official publication of such list (the “OFAC List”). For purposes of this Section 9(d), the term “Affiliate” is defined as any person that controls, is under common control with, or is controlled by the specified person, and the term “control” is defined as the power to direct or cause the direction of the management and policies of the applicable entity through ownership of voting securities or beneficial interests, by contract or otherwise, and persons having control include any general partner, managing member, manager or executive officer of the applicable entity, and any direct or indirect holder of more than 10% of the equity ownership interests of the applicable entity. (e) The Loan proceeds will not be used for any illegal purposes and no portion of the Property has been acquired with funds derived from illegal activities. No interest in Borrower shall have been acquired with funds derived from illegal activities. (f) Borrower shall covenant and agree to deliver to Lender any certification or other evidence requested from time to time by Lender in its sole discretion, confirming Borrower’s compliance with Anti-Terrorism Laws. The representations and warranties pertaining to Anti-Terrorism Laws and Borrower, Guarantor, Indemnitor or any of their respective Affiliates shall be deemed repeated and reaffirmed by Borrower as of the Closing and as of each date that Borrower makes a payment to Lender under the Loan Documents or receives any payment from Lender.

Representations and Warranties by Borrower. Applicant agrees that the following representations and warranties will be correct at Closing, and Borrower will be deemed to repeat and reaffirm the same at Closing: (a) Borrower shall have the requisite power and authority under its organizational documents to execute and deliver the Loan Documents, to perform Borrower’s obligations under the Loan Documents and to consummate the transaction contemplated by this Agreement and shall have taken any necessary action to authorize the execution and delivery of the Loan Documents, the performance of Borrower’s obligations under the Loan Documents and the consummation of the transaction contemplated by this Agreement and shall be otherwise in compliance with all applicable Law (defined herein). (b) Borrower shall not be an “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”) that is subject to Title I of ERISA or a “plan” as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended, and the related Treasury Regulations (the “Code”) that is subject to Section 4975 of the Code, and the assets of Borrower shall not constitute “plan assets” of one or more such plans for purposes of Title I of ERISA or Section 4975 of the Code. (c) Borrower shall not be a “governmental plan” within the meaning of Section 3(32) of ERISA and transactions by or with Borrower shall not be subject to any laws regulating investments of and fiduciary obligations with respect to governmental plans. (d) None of Borrower, Guarantor or Indemnitor or any of their respective Affiliates (defined herein) (i) shall be during the Term in violation of any laws relating to terrorist acts, acts of war and money laundering (the “Anti-Terrorism Laws”), or (ii) shall be a “Prohibited Person” as Person”as defined under the Anti-Terrorism Laws or will be identified as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website xxxx://xxx.xxxxx.xxx/ofac/tll_sdn.pdf or at any replacement website or official publication of such list (the “OFAC List”). For purposes of this Section 9(d), the term “Affiliate” is defined as any person that controls, is under common control with, or is controlled by the specified person, and the term “control” is defined as the power to direct or cause the direction of the management and policies of the applicable entity through ownership of voting securities or beneficial interests, by contract or otherwise, and persons having control include any general partner, managing member, manager or executive officer of the applicable entity, and any direct or indirect holder of more than 10% of the equity ownership interests of the applicable entity. (e) The Loan proceeds will not be used for any illegal purposes and no portion of the Property has been acquired with funds derived from illegal activities. No interest in Borrower shall have been acquired with funds derived from illegal activities. (f) Borrower shall covenant and agree to deliver to Lender any certification or other evidence requested from time to time by Lender in its sole discretion, confirming Borrower’s compliance with Anti-Terrorism Laws. The representations and warranties pertaining to Anti-Terrorism Laws and Borrower, Guarantor, Indemnitor or any of their respective Affiliates shall be deemed repeated and reaffirmed by Borrower as of the Closing and as of each date that Borrower makes a payment to Lender under the Loan Documents or receives any payment from Lender.