Representations and Warranties by the Borrower. The Borrower represents and warrants as follows: (a) The Borrower is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including the State. (b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing. (c) Neither the execution nor delivery of the Borrower Documents, nor the consummation of the transactions contemplated hereby or thereby, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts with or results in a breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any agreement or instrument to which the Borrower is now a party or by which it is bound, or constitutes a default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject. (d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project. (e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order. (f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder. (g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto. (h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents. (i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents. (j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing. (k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto. (l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein. (m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds. (n) The Project is located wholly within Darlington County, South Carolina. (o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, nor, to the knowledge of the Borrower, is there any basis therefor.
Appears in 1 contract
Samples: Loan Agreement (Bremen Bearings Inc)
Representations and Warranties by the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for its covenants herein:
(a) The Borrower is a corporation, limited liability company duly organized, validly created and existing and in good standing under the laws of the State of Delaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including 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 organizational documents to create, issue, enter into, execute and deliver the, the Bond Purchase Agreement, the Tax Exemption Agreement, this Loan Agreement, the Bond Collateral Documents to which it is a party and all action on its part necessary for the valid execution and delivery of, this Loan Agreement, the Tax Exemption Agreement, the Bond Purchase Agreement and the Bond Collateral Documents to which it is a party have been duly and effectively taken.
(b) The Borrower has the power execution and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of this Loan Agreement, the Borrower DocumentsTax Exemption Agreement, nor the Bond Purchase Agreement, the Bond Collateral Documents to which it is a party, the consummation of the transactions contemplated hereby or therebyherein and therein, nor and the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts and thereof do not and will not conflict with or results result in a breach of or will constitute a default under any of the terms, terms or conditions of any partnership restriction or provisions or any legal restriction of any agreement or instrument to which the Borrower or any Affiliate is now a party or by which it is boundparty, or constitutes and do not and will not constitute a default under any of the foregoing foregoing, or violates result in the creation or imposition of any judgmentLien of any nature upon any of the Property of the Borrower, orderincluding Property which the Borrower subsequently acquires, writexcept for Permitted Liens; the Borrower has a good and marketable title to its Property, injunctionand will have good and marketable title to the Expansions, decreeincluding the Project, lawin each case free and clear of all Liens whatsoever except Permitted Liens; the easements, rule rights-of-way, Liens, encumbrances, covenants, conditions, restrictions, exceptions, minor defects, irregularities of title and encroachments on adjoining real estate, if any, now existing with respect to the real property do not and will not materially adversely affect the value of the Facilities, materially impair the same, or regulation to materially impair or materially interfere with the operation and usefulness thereof for the purpose for which it is subjectwas acquired or are held by the Borrower; the Facilities are located upon the real property described in the Subordinate Mortgage; to the best of the Borrower’s knowledge, the Facilities do not and will 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 the Borrower are true.
(c) The Borrower has all necessary licenses and permits to occupy and operate the Facilities other than the Expansions, including the Project.
(d) The Borrower is knowledgeable Except as specifically described in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) The Borrower is not presently under any cease Official Statement, no litigation, proceedings or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor investigations are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatenedthreatened against the Borrower, any suitexcept (i) litigation, action proceedings or proceeding against or affecting investigations involving claims for which the Borrower by or before any courtprobable ultimate recoveries and the estimated costs and expenses of defense, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely in the opinion of counsel to the Borrower, will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or self insurance reserves and (ii) litigation in which, in the opinion of counsel to the Borrower, an adverse determination would materially and adversely affect not have a material adverse effect on the validity of any operations or condition, financial or otherwise, of the transactions contemplated by this Loan Agreement Borrower. In addition, no litigation, proceedings or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, norinvestigations are pending or, to the knowledge of the Borrower, threatened against the Borrower seeking to restrain, enjoin or in any way limit the approval and delivery of the Official Statement, the issuance, delivery or validity of the Series 2007A Bonds, or the execution, delivery or validity of the Bond Indenture, this Loan Agreement, the Tax Exemption Agreement, the Bond Purchase Agreement, the Series 2007A Bonds, the Bond Collateral Documents, or which would in any manner challenge or adversely affect the existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the terms and provisions of the Series 2007A Bonds, the Tax Exemption Agreement, the Bond Purchase Agreement, this Loan Agreement or the Bond Collateral Documents.
(e) The Borrower is a limited partnership organized and existing under the laws of the State of Delaware.
(f) The financial information with respect to the Borrower and any Affiliate included in the Preliminary Official Statement, dated August 20, 2007, as supplemented by an addendum dated October 1, 2007, and the Official Statement dated October 9, 2007 (the “Official Statement”), both relating to the Series 2007A Bonds is correct, and there has been no material adverse change in the condition, financial or otherwise, of the Borrower from that set forth in the Official Statement, except as expressly disclosed in the Official Statement.
(g) The Borrower has not heretofore engaged in, and the consummation of the transactions herein provided for and compliance by the Borrower with the provisions of this Loan Agreement, the Bond Indenture, the Series 2007A Bonds, the Tax Exemption Agreement and the Bond Collateral Documents will not involve, any basis thereforprohibited transaction within the meaning of Section 4975 of the Code.
(h) The information set forth in this Loan Agreement, the Tax Exemption Agreement and any other written statement (including the Official Statement) furnished by the Borrower to the Issuer does not 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 Borrower has no knowledge of any fact not disclosed to the Issuer in writing or in the Official Statement which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower, its ability to own and operate its Property or its ability to make the payments under this Loan Agreement when and as the same become due and payable.
(i) The representations, warranties and covenants contained in the Tax Exemption Agreement are true and correct as of such date.
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including the State.
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of the Borrower Documents, nor the consummation of the transactions contemplated hereby or thereby, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts with or results in a breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any agreement or instrument to which the Borrower is now a party or by which it is bound, or constitutes a default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's ’s knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, nor, to the knowledge of the Borrower, is there any basis therefor.
Appears in 1 contract
Samples: Loan Agreement (RBC Bearings INC)
Representations and Warranties by the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for its covenants in this Agreement:
(a) The Borrower is a corporation, corporation duly organized, validly existing and in good standing incorporated under the laws of the State of DelawareIllinois, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standingstanding and duly authorized to conduct its business in the State of Illinois, wherever such qualification is requiredduly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, including issue, enter into, execute and deliver, as the Statecase may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The Borrower has the power execution and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of the Borrower DocumentsAgreements on the Borrower’s part have been duly authorized by all necessary corporate action, nor and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated hereby or on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions hereof or thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any material agreement or instrument to which the Borrower is now a party or by which it is boundbound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the foregoing Project includes any property used or violates to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any judgment, order, writ, injunction, decree, law, rule property which is used or regulation to which it is subjectbe used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) The No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower is knowledgeable seeking to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the operation of manufacturing facilities Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the magnitude Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and nature the estimated costs and expenses of defense, in the opinion of management of the ProjectBorrower (i) 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 programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower is not presently under any cease for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or desist order or other orders of a similar nature, temporary or permanentotherwise, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunderBorrower on a consolidated basis since December 31, nor are there any proceedings presently 2007, from that set forth in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such orderinformation so utilized except as disclosed in the Official Statement.
(f) To The information used in the best preparation of its knowledgethe financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has madenot disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and will during are incorporated by reference in this Agreement.
(i) The Borrower has obtained the term approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term issuance of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction the Borrower Bonds to the extentTrustee as assignee of the Authority. No further or additional approval, if any, authorization or consent of any governmental or public agency or authority is required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower DocumentsAgreements.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement information contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer the written documents relating to another legal entity all or substantially all of its assets as an entirety the Project and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability use of the interest on proceeds of the Original Bonds, the Prior Bonds and the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed provided by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, nor, to Authority and bond counsel for the knowledge of the Borrower, Bonds is there any basis therefortrue and correct in all material respects.
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower represents hereby makes the following representations and warrants warranties and acknowledges and agrees that each and every one of the following representations and warranties shall survive closing and shall continue for as followslong as the Loan remains outstanding:
(a) The Borrower is has been duly organized and validly exists as a corporation, duly organized, validly existing and in good standing corporation under the laws of the State of Delaware, has power to enter into this Loan Agreement and the power Note evidencing the debt obligation of the Borrower to the Authority hereunder and authority has authorized the taking of all action necessary to own its properties carry out and carry on its business as now being conducted, and is duly qualified give effect to do such business, and is in good standing, wherever such qualification is required, including the Statetransactions contemplated by this Loan Agreement.
(b) The Borrower has the power and authority to execute and deliver There is no action or proceeding pending or threatened against the Borrower Documentsbefore any court or administrative agency that might adversely affect the ability of the Borrower to perform its obligations under this Loan Agreement and all authorizations, consents and to carry out approvals of governmental bodies or agencies, required in connection with the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoingBorrower's obligations hereunder have been obtained and will be obtained whenever required hereunder or by law.
(c) Neither the execution nor and delivery of the Borrower Documentsthis Loan Agreement, nor the consummation of the transactions contemplated hereby or therebyhereby, nor the fulfillment of or compliance with the terms and conditions hereof of this Loan Agreement is prevented, limited by, or thereof, conflicts with or results in a breach of or will constitute a default under any of of, the terms, conditions conditions, or provisions of any corporate restrictions or any legal restriction evidence of any indebtedness, agreement or instrument of whatever nature to which the Borrower is now a party or by which it is bound, or constitutes a default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subjectforegoing.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities All tax returns and reports of the magnitude Borrower required by law to be filed have been duly filed and nature all taxes, assessments, fees and other governmental charges upon the Borrower or upon any of its respective properties, assets, income or franchises which are due and payable pursuant to such returns and reports, or pursuant to any assessment received by the ProjectBorrower have been paid other than those which may be presently payable without penalty or interest.
(e) The Borrower is not presently under any cease There has been no material adverse change in the aggregate assets or desist order aggregate liabilities or other orders of a similar naturein the condition, temporary financial or permanentotherwise, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently Borrower from that set forth in progress or to its knowledge contemplated which would, if successful, lead the financial statements delivered to the issuance of any such orderAuthority by the Borrower in connection with this Loan Agreement.
(f) To the best of its knowledgeAll statements, representations and warranties made by the Borrower has madein its application to the Department, and will any materials furnished in support of the request for financial assistance and this Loan Agreement are true. It is specifically understood by the Borrower that all such statements, representations and warranties shall be deemed to have been relied upon by the Department and the Authority as an inducement to make the Loan and that if any such statements, representations or warranties were materially false at the time they were made or are breached during the term hereof, the Authority may, in its sole discretion, consider any such misrepresentation or breach an event of this Agreement makedefault including without limitation, all filings which the Borrower's representation that it is obligated would not have been able to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection proceed with the Project, Project without financial assistance from the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunderFund.
(g) To the best of the Borrower's knowledge, except Borrower represents to the extent disclosed Authority that it has at all times pertinent to this Loan Agreement been represented by advisors of its own selection, including but not limited to attorneys-at-law and/or certified public accountants; that it has not relied upon any statement, representation, warranty, agreement or information provided by the Department or the Authority, its employees, agents or attorneys; that it acknowledges that it is informed by its advisors of its respective rights, duties, and obligations with respect to the Credit EnhancerLoan under all applicable laws, that it has no set-offs, defenses or counterclaims against the operation Department or the Authority with respect to the Loan, and maintenance of that it is indebted to the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable theretoAuthority for the amounts stated in this Loan Agreement.
(h) The Borrower will keep further acknowledges and perform faithfully all of its dutiesagrees that the Department and the Authority has made no statements, obligationsrepresentations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessarywarranties, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted agreements or provided for herein or information to it in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer order to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with induce the execution of this Loan Agreement, the . Borrower will cause to be delivered to the Trustee, on behalf further acknowledges and agrees that all agreements of the Issuer, the Credit Facility and the Credit Facility shall be parties are set forth in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or in the Indenturefinancing documents executed by Borrower prior to or on even date hereof.
(i) If during any time the Loan remains outstanding, the Borrower becomes aware of any facts, occurrences, information, statements, or impair the ability events that render any of the foregoing representations or warranties herein made untrue or materially misleading or incomplete, Borrower to perform its obligations under this Loan Agreement shall immediately notify the Authority in writing of such facts, occurrences, information, statements or the Indenture, or as contemplated hereby or thereby, nor, to the knowledge of the Borrower, is there any basis thereforevents.
Appears in 1 contract
Samples: Loan Agreement (Igi Inc)
Representations and Warranties by the Borrower. The Borrower hereby represents and warrants to the Lender as follows:
(a) 5.1 The Borrower is a corporationthe government of lite Republic of Cameroon and represented by The Ministry of Economy, duly organizedPlanning and Regional Development of the Republic of Cameroon and has full power, validly existing authority and in good standing under legal rights to borrow the Facility on the terms and conditions hereunder.
5.2 The Borrower has completed all the authorizations, acts and procedures as required by the laws of the State of Delaware, has the power Borrower’s Country in order for this Agreement to constitute valid and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including the State.
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery legally binding obligations of the Borrower Documentsin accordance with its terms, nor including obtaining all the consummation approvals and authorizations from relevant authorities of the transactions contemplated hereby Borrower’s Country, and effecting all the registrations or thereby, nor filings as required by the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts with or results in a breach of or will constitute a default under any laws of the termsBorrower’s Country, conditions or provisions or any legal restriction of any agreement or instrument to and such approvals, authorizations, registrations and filings are in full force and effect.
5.3 As from the xxxx on which the Borrower is now a party or by which it is boundthis Agreement becomes effective, or this Agreement constitutes a default under any legal, valid and binding obligation of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subjectBorrower.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) 5.4 The Borrower is not presently in default under any cease law or desist order or other orders agreement applicable to it. the consequence of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would default could materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the its ability of the Borrower to perform its obligations under this Loan Agreement and no Event of Default has occurred under this Agreement.
5.5 The signing of this Agreement by the Borrower constitutes, and the Borrower’s performance of its obligations under this Agreement will constitute commercial acts. Neither the Borrower nor any of its assets is entitled to any right of immunity on the grounds of sovereign or otherwise from arbitration, suit, execution or any other legal process with respect to its obligations under this Agreement, as the Indenture, or as contemplated hereby or thereby, nor, ease may be. in any jurisdiction.
5.6 All information supplied to the knowledge of Lender by the Borrower, Borrower is there any basis therefortrue and accurate in all material respects. The Borrower represents and warrants to the Lender that the foregoing representations and warranties will be true and accurate throughout the Maturity Period with reference to the facts and circumstances subsisting from time to time. The Borrower acknowledges that the Lender has entered into this Agreement in reliance upon the representations and warranties contained in this Article.
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for its covenants in this Agreement:
(a) The Borrower is a corporation, corporation duly organized, validly existing and in good standing incorporated under the laws of the State of DelawareIllinois, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standingstanding and duly authorized to conduct its business in the State of Illinois, wherever such qualification is requiredduly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, including issue, enter into, execute and deliver, as the Statecase may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The Borrower has the power execution and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of the Borrower DocumentsAgreements on the Borrower’s part have been duly authorized by all necessary corporate action, nor and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated hereby or on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions hereof or thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any material agreement or instrument to which the Borrower is now a party or by which it is boundbound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the foregoing Project includes any property used or violates to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any judgment, order, writ, injunction, decree, law, rule property which is used or regulation to which it is subjectbe used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) The No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower is knowledgeable seeking to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the operation of manufacturing facilities Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the magnitude Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and nature the estimated costs and expenses of defense, in the opinion of management of the ProjectBorrower (i) 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 programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower is not presently under any cease for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or desist order or other orders of a similar nature, temporary or permanentotherwise, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunderBorrower on a consolidated basis since December 31, nor are there any proceedings presently 2007, from that set forth in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such orderinformation so utilized except as disclosed in the Official Statement.
(f) To The information used in the best preparation of its knowledgethe financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has madenot disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and will during are incorporated by reference in this Agreement.
(i) The Borrower has obtained the term approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term issuance of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction the Borrower Bonds to the extentTrustee as assignee of the Authority. No further or additional approval, if any, authorization or consent of any governmental or public agency or authority is required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower DocumentsAgreements.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement information contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer the written documents relating to another legal entity all or substantially all of its assets as an entirety the Project and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability use of the interest on proceeds of the Original Bonds, the Prior Bonds and the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed provided by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, nor, to Authority and bond counsel for the knowledge of the Borrower, Bonds is there any basis therefortrue and correct in all material respects.
Appears in 1 contract
Samples: Loan Agreement
Representations and Warranties by the Borrower. The Borrower represents and warrants to the Lender and the Agent that each of the following matters is true and correct as follows:of the date of this Agreement and the Drawdown Date. The Borrower shall immediately provide notice in writing to the Agent in accordance with item (2) of Clause 18.2 in the event any of the facts set out in the following items are found to have been untrue or incorrect. This Clause 17 shall remain in full effect until the Borrower completes the performance of all its obligations and liabilities under this Agreement. The Borrower shall indemnify the Lenders and the Agent for all losses and expenses directly incurred by them which are directly caused by any of the following items being found to be untrue except in cases of the gross negligence or willful misconduct of the Agent or any Lender.
(a1) The Borrower is a corporation, stock company duly organized, and validly existing incorporated and in good standing under the laws of the State of Delaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including the State.
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of the Borrower Documents, nor the consummation of the transactions contemplated hereby or thereby, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts with or results in a breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any agreement or instrument to which the Borrower is now a party or by which it is bound, or constitutes a default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and validly existing under the laws of one Japan.
(2) The Borrower holds both the capacity to hold rights and capacity to act required for the execution and performance of this Agreement, and all procedures required for the same by Laws and Regulations applicable to the Borrower, its articles of incorporation and other internal regulations have been completed.
(3) The execution and performance of this Agreement by the Borrower and transactions associated herewith do not result in (i) any violation of the States Laws and Regulations binding the Borrower (except minor violation thereof); (ii) any breach of the United States Borrower’s articles of America incorporation or its other internal regulations (except minor breach thereof), and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all any breach of the obligations of agreements entered into by the Borrower under with third parties (excluding the Existing Senior Loan Agreement and the agreements to create the Existing Securities) which bind the Borrower Documents in which event or its assets to the Borrower shall be released from extent a breach thereof would have a material adverse effect on the Borrower's performance of its payment obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writingthis Agreement.
(k4) The Borrower will advise the Issuer, the Credit Enhancer person who signed or attached his/her name and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant seal to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the IssuerBorrower is fully authorized to sign or attach his/her name and seal to this Agreement as the representative of the Borrower by all procedures required by the Laws and Regulations applicable to the Borrower, the Credit Facility articles of incorporation and the Credit Facility shall be in full force and effect and shall secure the payment other internal regulations of the principal and purchase price of, and interest on, the BondsBorrower.
(n5) The Project (Intentionally Deleted)
(6) This Agreement constitutes legal, valid and binding obligations of the Borrower, and is located wholly within Darlington Countyenforceable against the Borrower in accordance with the terms thereof (subject to restrictions under bankruptcy law (Xxxxx xx) or other Laws and Regulations which generally affect rights of the creditors of the Borrower, South Carolinaand excluding provisions which are generally suspected to be illegal or invalid in the agreements which are similar to this (English Translation - For Reference Purpose Only) Agreement).
(o7) There This Agreement (i) has been duly and validly executed (ii) has not been amended without acknowledgement of the Lenders and the Agent, and (iii) to the best knowledge of the Borrower no cause to invalidate, terminate, repeal or cancel it has occurred, and to the knowledge of the Borrower, there is not now pending orno reasonable likelihood thereof.
(8) The Shareholders validly hold 100% (on the Fully Diluted Basis) of the outstanding shares of the Borrower.
(9) All Financial Documents prepared by the Borrower are prepared in accordance with accounting standards which are generally accepted as fair and appropriate in Japan or the International Financial Reporting Standards (IFRSs), and are audited by an audit firm and such audit has been completed in its unqualified opinion.
(10) After the Fiscal Year ending in March 2016, to the knowledge of the Borrower, threatened, no material events which have or would reasonably be expected to have a material adverse effect on the Borrower's performance of its payment obligations under this Agreement have occurred.
(11) The Borrower has not established any suit, action security interest over its material assets excluding the Existing Securities and security interests automatically created by virtue of the Laws and Regulations or proceeding against or affecting otherwise permitted hereunder.(including Clause 18.3)
(12) The Financial Indebtedness of the Borrower under this Agreement are ranked at least pari passu in all respects with all other unsecured and non-subordinated payment obligations (including guarantee obligations) of the Borrower under other agreements (excluding obligations prioritized by virtue of the Laws and Regulations).
(13) No Statutory Insolvency Procedures or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely Private Rehabilitation Procedures have been initiated with respect to the Borrower. The Borrower has not become unable (shiharai funo), would materially or admitted to its creditors its inability (shiharai teishi) to pay debts generally as such debts become due, nor has it become insolvent. Any promissory note (yakusoku tegata) or check (kogitte) issued by the Borrower in Japan has not been dishonored (fuwatari) and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform have not been suspended by a clearinghouse, or xxxxxx.xxx Co., Ltd., and no other equivalent procedures have been taken by other electric monetary claim recording institutions. There is no reasonable likelihood that the Borrower's execution and performance of this Agreement will cause the occurrence of any circumstances set out in this paragraph.
(14) No litigation procedures, arbitration procedures, administrative procedures or any other legal procedures which will or may have a material adverse effect on the Borrower's performance of its payment obligations under this Loan Agreement has been commenced, and to the Borrower’s knowledge there is no reasonable likelihood that such procedures will be (English Translation - For Reference Purpose Only) commenced.
(15) The Borrower has obtained and maintains duly and validly all material Permission Etc. (excluding minor violations, a failure to which has or would reasonably be expected to have a material adverse effect on the Indenture, or Borrower's performance of its payment obligations under this Agreement. The Borrower is not in breach of the Laws and Regulations (including but not limited to construction law (Kenchikukijun ho) (Law No. 201 of 1950 as contemplated hereby or thereby, noramended)) which have a material adverse effect on the Borrower's performance of its payment obligations under this Agreement.
(16) No Events of Default have occurred and, to the knowledge of the Borrower's knowledge, there is there any basis thereforno reasonable likelihood for such events to occur.
(17) The Borrower does not fall under Anti-Social Forces or ASF Related Parties, and has not committed Anti-Social Conduct by itself or through a third party.
(18) (Intentionally Deleted)
Appears in 1 contract
Samples: Loan Agreement
Representations and Warranties by the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for its covenants herein:
(a) The Borrower is a corporation, corporation duly organized, validly existing and in good standing incorporated under the laws of the State of DelawareIllinois, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standingstanding and duly authorized to conduct its business in the State of Illinois, wherever such qualification is requiredduly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, including issue, enter into, execute and deliver, as the Statecase may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The Borrower has the power execution and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of the Borrower DocumentsAgreements on the Borrower’s part have been duly authorized by all necessary corporate action, nor and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated hereby or on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions hereof or thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any material agreement or instrument to which the Borrower is now a party or by which it is boundbound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities at the electric generating plants listed in Exhibit A hereto, and (ii) constitutes “environmental facilities” as defined in the Environmental Act. No portion of the foregoing Project includes any property used or violates to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any judgment, order, writ, injunction, decree, law, rule property which is used or regulation to which it is subjectbe used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) The Borrower is not presently under any cease No litigation, proceedings or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor investigations are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding threatened in writing against or affecting the Borrower by seeking to restrain, enjoin or before in any court, arbitrator, administrator, administrative agency way limit the approval or other governmental authority which, if decided adversely to execution and delivery of the Borrower, Borrower Agreements or which would materially and in any manner challenge or adversely affect the validity of any of the transactions contemplated by this Loan Agreement corporate existence or the Indenture, or impair the ability powers of the Borrower to perform its obligations under this Loan Agreement enter into and carry out the transactions described in or contemplated by or the Indentureexecution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as contemplated hereby described in the Official Statement, no litigation, proceedings or thereby, norinvestigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) 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 programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports thereon of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of said dates, and the results of the operations of the Borrower for each of such periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007 from that set forth in the information so utilized except as disclosed in the Official Statement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated herein and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein, in light of the circumstances under which they were made, not misleading. There is there any basis thereforno fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower represents and warrants to the Lender and the Agent that each of the following matters is true and correct as follows:of the date of this Agreement and the Drawdown Date. The Borrower shall immediately provide notice in writing to the Agent in accordance with item (2) of Clause 18.2 in the event any of the facts set out in the following items are found to have been untrue or incorrect. This Clause 17 shall remain in full effect until the Borrower completes the performance of all its obligations and liabilities under this Agreement. The Borrower shall indemnify the Lenders and the Agent for all losses and expenses directly incurred by them which are directly caused by any of the following items being found to be untrue except in cases of the gross negligence or willful misconduct of the Agent or any Lender.
(a1) The Borrower is a corporation, stock company duly organized, and validly existing incorporated and in good standing under the laws of the State of Delaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including the State.
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of the Borrower Documents, nor the consummation of the transactions contemplated hereby or thereby, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts with or results in a breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any agreement or instrument to which the Borrower is now a party or by which it is bound, or constitutes a default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and validly existing under the laws of one Japan.
(2) The Borrower holds both the capacity to hold rights and capacity to act required for the execution and performance of this Agreement, and all procedures required for the same by Laws and Regulations applicable to the Borrower, its articles of incorporation and other internal regulations have been completed.
(3) The execution and performance of this Agreement by the Borrower and transactions associated herewith do not result in (i) any violation of the States Laws and Regulations binding the Borrower (except minor violation thereof); (ii) any breach of the United States Borrower’s articles of America incorporation or its other internal regulations (except minor breach thereof), and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all any breach of the obligations of agreements entered into by the Borrower under with third parties (excluding the Existing Senior Loan Agreement and the agreements to create the Existing Securities) which bind the Borrower Documents in which event or its assets to the Borrower shall be released from extent a breach thereof would have a material adverse effect on the Borrower's performance of its payment obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writingthis Agreement.
(k4) The Borrower will advise the Issuer, the Credit Enhancer person who signed or attached his/her name and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant seal to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the IssuerBorrower is fully authorized to sign or attach his/her name and seal to this Agreement as the representative of the Borrower by all procedures required by the Laws and Regulations applicable to the Borrower, the Credit Facility articles of incorporation and the Credit Facility shall be in full force and effect and shall secure the payment other internal regulations of the principal and purchase price of, and interest on, the BondsBorrower.
(n5) The Project (Intentionally Deleted)
(6) This Agreement constitutes legal, valid and binding obligations of the Borrower, and is located wholly within Darlington Countyenforceable against the Borrower in accordance with the terms thereof (subject to restrictions under bankruptcy law (Xxxxx xx) or other Laws and Regulations which generally affect rights of the creditors of the Borrower, South Carolinaand excluding provisions which are generally suspected to be illegal or invalid in the agreements which are similar to this Agreement).
(o7) There This Agreement (i) has been duly and validly executed (ii) has not been amended without acknowledgement of the Lenders and the Agent, and (iii) to the best knowledge of the Borrower no cause to invalidate, terminate, repeal or cancel it has occurred, and to the knowledge of the Borrower, there is not now pending orno reasonable likelihood thereof.
(8) The Shareholders validly hold 100% (on the Fully Diluted Basis) of the outstanding shares of the Borrower.
(9) All Financial Documents prepared by the Borrower are prepared in accordance with accounting standards which are generally accepted as fair and appropriate in Japan or the International Financial Reporting Standards (IFRSs), and are audited by an audit firm and such audit has been completed in its unqualified opinion.
(10) After the Fiscal Year ending in March 2016, to the knowledge of the Borrower, threatened, no material events which have or would reasonably be expected to have a material adverse effect on the Borrower's performance of its payment obligations under this Agreement have occurred.
(11) The Borrower has not established any suit, action security interest over its material assets excluding the Existing Securities and security interests automatically created by virtue of the Laws and Regulations or proceeding against or affecting otherwise permitted hereunder.(including Clause 18.3)
(12) The Financial Indebtedness of the Borrower under this Agreement are ranked at least pari passu in all respects with all other unsecured and non-subordinated payment obligations (including guarantee obligations) of the Borrower under other agreements (excluding obligations prioritized by virtue of the Laws and Regulations).
(13) No Statutory Insolvency Procedures or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely Private Rehabilitation Procedures have been initiated with respect to the Borrower. The Borrower has not become unable (shiharai funo), would materially or admitted to its creditors its inability (shiharai teishi) to pay debts generally as such debts become due, nor has it become insolvent. Any promissory note (yakusoku tegata) or check (kogitte) issued by the Borrower in Japan has not been dishonored (fuwatari) and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform have not been suspended by a clearinghouse, or xxxxxx.xxx Co., Ltd., and no other equivalent procedures have been taken by other electric monetary claim recording institutions. There is no reasonable likelihood that the Borrower's execution and performance of this Agreement will cause the occurrence of any circumstances set out in this paragraph.
(14) No litigation procedures, arbitration procedures, administrative procedures or any other legal procedures which will or may have a material adverse effect on the Borrower's performance of its payment obligations under this Loan Agreement has been commenced, and to the Borrower’s knowledge there is no reasonable likelihood that such procedures will be commenced.
(15) The Borrower has obtained and maintains duly and validly all material Permission Etc. (excluding minor violations, a failure to which has or would reasonably be expected to have a material adverse effect on the Indenture, or Borrower's performance of its payment obligations under this Agreement. The Borrower is not in breach of the Laws and Regulations (including but not limited to construction law (Kenchikukijun ho) (Law No. 201 of 1950 as contemplated hereby or thereby, noramended)) which have a material adverse effect on the Borrower's performance of its payment obligations under this Agreement.
(16) No Events of Default have occurred and, to the knowledge of the Borrower's knowledge, there is there any basis thereforno reasonable likelihood for such events to occur.
(17) The Borrower does not fall under Anti-Social Forces or ASF Related Parties, and has not committed Anti-Social Conduct by itself or through a third party.
(18) (Intentionally Deleted)
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower hereby represents and warrants to the Lender as follows:
(a) 5.1 The Borrower is a corporationthe Government of the Republic of Cameroon represented by the Ministry of Economy, duly organizedPlanning and Regional Development of Cameroon and has full power, validly existing authority and legal rights to borrow the Facility on the terms and conditions hereunder.
5.2 All authorizations, acts and procedures necessary for the signing and performance of this Agreement have been completed and are in good standing under full force and effect.
5.3 The Borrower has completed all the acts and procedures as required by the laws of the State of Delaware, has the power Borrower’s Country in order for this Agreement to constitute valid and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including the State.
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery legally binding obligations of the Borrower Documentsin accordance with its terms, nor including obtaining all the consummation approvals and authorizations from relevant authorities of the transactions contemplated hereby Borrower’s Country, and effecting all the registrations or thereby, nor filings as required by the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts with or results in a breach of or will constitute a default under any laws of the termsBorrower’s Country, conditions or provisions or any legal restriction of any agreement or instrument to and such approvals, authorizations, registrations and filings are in full force and effect.
5.4 As from the date on which the Borrower is now a party or by which it is boundthis Agreement becomes effective, or this Agreement constitutes a default under any legal, valid and binding obligation of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subjectBorrower.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) 5.5 The Borrower is not presently in default under any cease law or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or agreement applicable to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledgeit, the Borrower has made, and will during the term consequence of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would default could materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the its ability of the Borrower to perform its obligations under this Loan Agreement or and no Event of Default has occurred under this Agreement.
5.6 The signing of this Agreement by the IndentureBorrower constitute, or as contemplated hereby or thereby, nor, and the Borrower’s performance of its obligations under this Agreement will constitute commercial acts. The Borrower is subject to the knowledge general jurisdiction of civil and business laws. Neither the BorrowerBorrower nor any of its assets or revenues is entitled to any immunity or privilege (sovereign or otherwise) from any set-off, is there any basis thereforarbitration awards, execution, attachment or other legal process. The Borrower represents and warrants to the Lender that the foregoing representations and warranties will be true and accurate throughout the Maturity Period with reference to the facts and circumstances subsisting from time to time.
Appears in 1 contract
Representations and Warranties by the Borrower. The ---------------------------------------------- Borrower represents and warrants as followsthat:
(a) The Borrower is a corporation, corporation duly organized, validly existing and in good standing under the laws of the State state of Delaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including the Stateincorporation.
(b) The Borrower has the power and authority and has been duly authorized to execute and deliver enter into the Bond Documents to which the Borrower Documentsis a party, and to carry out perform all of the transactions contemplated hereby and therebyBorrower's obligations thereunder, and has duly authorized the execution, delivery and performance of each no approval or other action by any governmental authority or agency or other person is required in connection therewith except such as have been obtained as of the foregoingdate of execution and delivery hereof.
(c) Neither The willingness of the Issuer to issue the Series 1999 Bonds for purposes of financing costs of acquiring, constructing, renovating, equipping and installing the Project has induced the Borrower to locate the Project within the boundaries of the Issuer.
(d) The Project will create or preserve jobs and employment opportunities within the boundaries of the State and the Issuer, thereby improving the economic prosperity and general welfare of the State and the Issuer.
(e) The Borrower is not subject to any contractual or other limitation or provision of any nature whatsoever which in any way limits, restricts or prevents the Borrower from entering into the Bond Documents to which the Borrower is a party, or performing any of the Borrower's obligations thereunder; and the execution nor and delivery of the Bond Documents to which the Borrower Documentsis a party, nor the consummation of the transactions contemplated hereby or thereby, nor and the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts thereof will not conflict with or results result in a breach of or will constitute a default under any of the terms, conditions or provisions of the Borrower's Articles of Incorporation, Bylaws or other organizational document, resolutions or actions of its shareholders or Board of Directors, or any legal restriction committee thereof, nor of any restriction, agreement or instrument to which the Borrower is now a party or by which it the Borrower is bound, or constitutes of any law or regulation, or of any writ, order or decree of any court or governmental agency, or constitute a default under any of the foregoing foregoing, or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable result in the operation creation or imposition of manufacturing facilities any lien, charge or encumbrance upon any of the magnitude and nature of the Project.
(e) The Borrower is not presently under any cease properties or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower assets of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except pursuant to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances terms of any of the rights granted or provided for herein or in foregoing, except as contemplated by the Borrower terms of the Bond Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, nor, to the knowledge of the Borrower, is there any basis therefor.
Appears in 1 contract
Samples: Loan Agreement (Peco Ii Inc)
Representations and Warranties by the Borrower. The Borrower represents represents, warrants and warrants covenants, as followsapplicable, the following to the Lender:
(a) The Borrower is a corporation, Swiss stock corporation duly organized, incorporated and validly existing and in good standing under the laws of the State of DelawareSwitzerland, has with the power and authority (corporate and other) to own its properties and carry on conduct its business as now being conductedin the ordinary course. Convertible Note Agreement | AC Immune SA, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including the State.11 December 2018 8/23
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has is duly authorized to enter into and perform its obligations under or in connection with this Note Agreement and the execution, delivery and performance of each of promissory note attached as Annex 3 (the foregoing“Note”).
(c) Neither the execution nor delivery The obligations of the Borrower Documentsaccording to this Note Agreement and the Note are valid, nor binding and enforceable against the consummation Borrower subject only to bankruptcy, insolvency, reorganization, and composition or similar laws affecting creditors’ rights in general.
d) The obligations of the transactions contemplated hereby Borrower according to this Note Agreement and the Note do not conflict with, violate or thereby, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts with or results result in a breach of any law, regulation or will constitute a default under any judgement applicable to the Company or its Articles of the termsAssociation, conditions or provisions or any legal restriction of any agreement or instrument commitment to which the Borrower Company is now a party to or by which it is bound, or constitutes a default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) The Borrower is not presently under any cease or desist order or other orders Articles of a similar nature, temporary or permanent, Association filed with the register of any federal or state authority which would have commerce at the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term date of this Note Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be are in full force and effect and shall secure the payment effect.
f) As of the principal date of this Note Agreement, the Company has filed all reports, schedules, forms, statements and purchase price ofother documents required to be filed by the Company under the Securities Exchange Act of 1934, as amended, including pursuant to Section 13(a) or 15(d) thereof (the “SEC Documents”), and interest onwill continue to do so until the date that is one year from the Closing Date (it being understood that the Company shall have no such obligation to file SEC Documents during such one year period if the Company ceases to be subject to the requirement to do so as a result of an acquisition of the Company by a third party that is approved by the Company’s shareholders under applicable law, other than an acquisition that would constitute a default under Section 8.1.h) hereof).
g) Neither the Company nor any subsidiary or affiliate, nor any person acting on its or their behalf, has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under any circumstances that would require registration of the Note or the Conversion Shares under the Securities Act of 1933, as amended (the “Act”) and assuming the accuracy of the representations and warranties of the Lender contained in Section 6.2 hereof, the Bondsissuance of the Note and the Conversion Shares are exempt from registration under the Act.
(nh) The Project is located wholly within Darlington CountyConversion Shares, South Carolinawhen issued, will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to preemptive rights or other similar rights of stockholders of the Company.
i) The Company will reserve and maintain, at all times during which the Note is outstanding, a number of shares under its conditional share capital (oor other immediately available share capital) There is not now pending or, equal to the knowledge maximum number of Conversion Shares issuable under the BorrowerNote.
j) The Company owns or possesses licenses or sufficient rights to use all patents, threatenedpatent applications, any suitpatent rights, action or proceeding against or affecting the Borrower by or before any courtinventions, arbitratorknow-how, administratortrade secrets, administrative agency or other governmental authority whichtrademarks, if decided adversely to the BorrowerConvertible Note Agreement | AC Immune SA, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, nor, to the knowledge of the Borrower, is there any basis therefor.11 December 2018 9/23
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for its covenants herein:
(a) The Borrower is a corporation, corporation duly organized, validly existing and in good standing incorporated under the laws of the State of DelawareIllinois, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standingstanding and duly authorized to conduct its business in the State of Illinois, wherever such qualification is requiredduly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, including issue, enter into, execute and deliver, as the Statecase may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The Borrower has the power execution and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of the Borrower DocumentsAgreements on the Borrower’s part have been duly authorized by all necessary corporate action, nor and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated hereby or on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions hereof or thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any material agreement or instrument to which the Borrower is now a party or by which it is boundbound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A hereto, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the foregoing Project includes any property used or violates to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any judgment, order, writ, injunction, decree, law, rule property which is used or regulation to which it is subjectbe used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) The No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower is knowledgeable seeking to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the operation of manufacturing facilities Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the magnitude Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and nature the estimated costs and expenses of defense, in the opinion of management of the ProjectBorrower (i) 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 programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower is not presently under any cease for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports thereon of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of said dates, and the results of the operations of the Borrower for each of such periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or desist order or other orders of a similar nature, temporary or permanentotherwise, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunderBorrower on a consolidated basis since December 31, nor are there any proceedings presently 2007 from that set forth in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such orderinformation so utilized except as disclosed in the Official Statement.
(f) To The information used in the best preparation of its knowledgethe financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated herein and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has madenot disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, 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”, that are subject to Title IV of ERISA (herein sometimes referred to as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and will during are incorporated by reference herein.
(i) The Borrower has obtained the term approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term issuance of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction the Borrower Bonds to the extentTrustee as assignee of the Authority. No further or additional approval, if any, authorization or consent of any governmental or public agency or authority is required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.Agreements.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement information contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer the written documents relating to another legal entity all or substantially all of its assets as an entirety the Project and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability use of the interest on proceeds of the Original Bonds, the Prior Bonds and the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed provided by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, nor, to Authority and bond counsel for the knowledge of the Borrower, Bonds is there any basis therefortrue and correct in all material respects.
Appears in 1 contract
Samples: Loan Agreement
Representations and Warranties by the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for its covenants herein:
(a) The Borrower is a corporation, corporation duly organized, validly existing and in good standing incorporated under the laws of the State of DelawareIllinois, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standingstanding and duly authorized to conduct its business in the State of Illinois, wherever such qualification is requiredduly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, including issue, enter into, execute and deliver, as the Statecase may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The Borrower has the power execution and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of the Borrower DocumentsAgreements on the Borrower’s part have been duly authorized by all necessary corporate action, nor and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated hereby or on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions hereof or thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any material agreement or instrument to which the Borrower is now a party or by which it is boundbound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A hereto, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the foregoing Project includes any property used or violates to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any judgment, order, writ, injunction, decree, law, rule property which is used or regulation to which it is subjectbe used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) The No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower is knowledgeable seeking to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the operation of manufacturing facilities Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the magnitude Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and nature the estimated costs and expenses of defense, in the opinion of management of the ProjectBorrower (i) 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 programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower is not presently under any cease for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports thereon of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of said dates, and the results of the operations of the Borrower for each of such periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or desist order or other orders of a similar nature, temporary or permanentotherwise, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunderBorrower on a consolidated basis since December 31, nor are there any proceedings presently 2007 from that set forth in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such orderinformation so utilized except as disclosed in the Official Statement.
(f) To The information used in the best preparation of its knowledgethe financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated herein and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has madenot disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, 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”, that are subject to Title IV of ERISA (herein sometimes referred to as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and will during are incorporated by reference herein.
(i) The Borrower has obtained the term approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term issuance of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction the Borrower Bonds to the extentTrustee as assignee of the Authority. No further or additional approval, if any, authorization or consent of any governmental or public agency or authority is required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower DocumentsAgreements.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement information contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer the written documents relating to another legal entity all or substantially all of its assets as an entirety the Project and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability use of the interest on proceeds of the Original Bonds, the Prior Bonds and the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed provided by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, nor, to Authority and bond counsel for the knowledge of the Borrower, Bonds is there any basis therefortrue and correct in all material respects.
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including the State.
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of the Borrower Documents, nor the consummation of the transactions contemplated hereby or thereby, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts with or results in a breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any agreement or instrument to which the Borrower is now a party or by which it is bound, or constitutes a default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the ProjectPlant.
(e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project Plant does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity entity, organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The working capital constituting the Project is located wholly within Darlington County, South Carolinawill be used solely in connection with the Borrower's operation of the Plant or to pay costs of issuance of the Bonds.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, nor, to the knowledge of the Borrower, is there any basis therefor.
(p) The Project is of the type authorized and permitted by the Act, and the Project is substantially the same in all material respects to that described in the notice of public hearing published in The Darlington News and Post on June 1, 1994.
(q) The Plant is located wholly within Darlington County, South Carolina.
(r) The Borrower will not take any action or omit to take any action or permit any action which is within its control to be taken or omitted which would impair the excludability from gross income for federal income taxation purposes of interest on the Series 1994A Bonds. [End of Article II]
Appears in 1 contract
Samples: Loan Agreement (Bremen Bearings Inc)
Representations and Warranties by the Borrower. The Borrower hereby declares, represents and warrants on a continuing basis that:
a) Borrower is aware that RCFL is granting the Loan on the basis of the Loan Application made by him/her/it for the purchase of the Car/Hypothecated Asset(s) and on the faith of the representations made by the Borrower and believing the same to be true.
b) All the necessary approvals for availing of the Loan have been obtained and that the Borrower will at all times till the amounts due to RCFL are paid in full and the Loan is fully repaid, keep all such permissions valid and subsisting.
c) The officer of the Borrower executing this Agreement and the documents executed in pursuance hereof, are duly and properly in office and fully authorized to execute the same.
d) This Agreement and the documents to be executed in pursuance hereof, when executed and delivered, will constitute valid and binding obligations of the Borrower.
e) It has not taken any corporate action nor have any steps been taken or legal proceedings been initiated or threatened against the Borrower for its insolvency, bankruptcy, liquidation, winding up, dissolution, administration, reorganization or for appointment of receiver, administrator of the Borrower or all or any of its assets or undertakings.
f) As of the date of this Agreement, there is no litigation, proceedings or disputes pending or threatened against the Borrower, the adverse determination of which might substantially, affect the Borrower's ability to repay the Loan as followsdescribed in the Schedule hereto or have a Materially Adverse Effect on the financial condition of the Borrower.
g) The execution and delivery of this Agreement and the performance of its obligations hereunder does not:
i) contravene any Applicable Law, statute or regulation or any judgment or decree to which the Borrower or its property is subject.
ii) conflict or result in any breach of any covenants, conditions and stipulation under any existing agreement, to which the Borrower is a party or by which its property is bound;
iii) if the Borrower is a Company, conflict or contravene any provision of constitutional documents including the Memorandum and Articles of Association of the Borrower;
h) The Borrower shall ensure that each of the Loans is within and not in excess of the 'Loan to Value' ratio of the Lender as per Lender's internal policies and shall therefore furnish and submit to the Lender all correct, complete and genuine information in relation to the price and cost of the Car.
i) There has been no Material Adverse Effect to in the financial condition of the Borrower, nor has any event which is prejudicial to the interest of RCFL taken place since the date of latest audited financials of the Borrower which is likely to materially and/or adversely affect the liability of the Borrower to perform all or any of the obligations under this Agreement.
j) The information given in the Application Form and end use of funds letter and any prior or subsequent information provided or explanation furnished to the Lender in this behalf are true, complete and accurate in every respect.
k) The Purpose for which the Loan is taken is not illegal, speculative or nefarious.
l) The Borrower assures that subsequent to the application there has been no material change, which would adversely affect the Lender and/or the provision of Loan by the Lender to the Borrower.
m) The Borrower is not aware of any document, judgement or legal process or other charges or of any latent or patent defect affecting the title of the Car/property or of any material defect in the Car/property which has remained undisclosed and/or which may affect the Lender prejudicially.
n) The Borrower has paid or will pay fully and timely, when due, all public demands such as income tax, property taxes and all the other Taxes and revenues payable to the Government or to any local authority and that at present there are no arrears and/or default whatsoever of such Taxes and revenues due and outstanding and shall be no arrears and/or default whatsoever in relation to the same.
o) The Borrower has disclosed/furnished all facts/information to the Lender in respect of the Loan and all information in the Loan Application or in any supporting documents or otherwise howsoever is absolutely true, correct and complete in all respects and that no fact or information necessary to be furnished by the Borrower has been omitted to be stated in order to induce the Lender to provide the Loan
p) The Borrower does not violate any covenant, conditions or stipulations under any existing agreements entered into by the Borrower with any party, by availing the Loan from the Lender.
q) The Borrower assures that all the necessary approvals for availing the Loan and creating the Security/Securities have been obtained or shall be obtained.
r) The Borrower is entitled and empowered to borrow the Loan, provide the security documents, execute the promissory notes, if any, and all other documents and papers in connection with and upon execution of the same will create legal and binding obligations on the Borrower enforceable in accordance with their respective terms.
s) The Borrower confirms that the representations and warranties contained herein shall be deemed to be repeated by the Borrower on and as of each day from the date of this Agreement until all sums due or owing hereunder by the Borrower to the Lender have been paid in full, as if made with reference to the facts and circumstances existing on such day.
t) The Borrower is the sole and absolute legal and beneficial owner of the Car/ Hypothecated Assets.
u) In case the Borrower is a company, the Borrower is a body corporate duly constituted under the laws of India;
v) In case the Borrower is a company, it is competent to contract within the meaning of the Indian Contract Act, 1872 and that there is no impediment to its capacity to enter into contracts and it has the power to enter into, deliver and perform its obligations under this Agreement;
(a) The Borrower (i) is a corporationmajor, duly organizedof sound mind, validly existing solvent and in good standing under the laws of the State of Delaware, has the power and authority competent to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including the State.
contract (b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of the Borrower Documents, nor the consummation of the transactions contemplated hereby or thereby, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts with or results in a breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any agreement or instrument to which where the Borrower is now an individual including partners in a party or by which it is bound, or constitutes a default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposespartnership firm); (ii) that if is a trust/society/partnership firm/HUF/LLP/other body corporate (as mentioned in the successor Schedule hereto) duly constituted, incorporated or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized registered and validly existing under the laws of one of the States of the United States of America and shall be qualified licensed to do business in under the StateApplicable Law and can xxx and be sued as such; (iii) such successor the Borrower (if an individual) or transferee entity shall assume all each of the obligations partners (in case the Borrower is a partnership firm), is a (a) citizen of India; (b) the partners' rights against the firm with respect to any loan or money granted by the partners to the firm or with respect to any such transactions shall always be subordinate to the right of the Lender for the Loan granted to the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documentsthis Agreement; and (iv) the Credit Enhancer consents thereto in writing.
(kc) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to partner signing this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuerfirm is the designated partner of the firm and is authorized under the partnership agreement signed between the partners of the firm to do all the acts, matters and things including executing this Agreement for availing the Loan on behalf of the firm and creating Security as contemplated in terms hereof; (iv) where the Borrower is a HUF, the Credit Facility Borrower declares and confirms, that the Credit Facility borrowing is for the purposes and benefit of the HUF and its co-parceners.
x) No application has been filed by any Person, before any forum under the IBC, no resolution of directors or of members or declaration of partners, as the case may be, has been made, for the purposes of/ towards/recommending filing of any proceedings or application for initiation of insolvency resolution process or fast track resolution process or voluntary liquidation process or fresh start process or bankruptcy or any kind of insolvency/resolution/liquidation/bankruptcy process by whatever name called in relation to the Borrower.
y) The true copies of the document submitted for the purpose of the Loan are genuine. The Lender may at any time, call for or require verification of originals of any/all such copies. Any such copy in possession of the Lender shall be in full force and effect and shall secure deemed to have been given only by the payment of the principal and purchase price of, and interest on, the BondsBorrower.
(n) The Project is located wholly within Darlington County, South Carolina.
(oz) There is not now no action, suit, proceedings or investigation pending or, to the knowledge of the Borrower, is threatened, any suit, action by or proceeding against or affecting the Borrower by or before any courtcourt of law or Government Authority or any other competent authority which might have Material Adverse Effect on the financial and other affairs of the Borrower or which might put into question the validity or performance of this Agreement or any of its terms and conditions.
aa) In case of the Borrower being an HUF, arbitratorthe subject matter of this Agreement and entering into the obligations hereunder or pursuant hereto including the borrowing of the Loan under this Agreement and the Purpose thereof (i.e. purchase of the Car) as also creating of Security over the Asset(s) for securing inter alia the Borrower's Dues, administratoris for legal necessity and/or benefit of estate of the HUF.
bb) In case of the Borrower being an HUF, administrative agency either all the adult members/coparceners of HUF have signed, executed and delivered this Agreement and other Transaction Documents or the Karta has the full authority from all the adult members of the HUF to (for and on behalf of the HUF as also on their behalf in personal capacity) to sign, execute and deliver this Agreement and other governmental authority whichTransaction Documents, if decided adversely and to enter into the obligations mentioned thereunder and pursuant thereto and the Karta has accordingly signed, executed and delivered this Agreement and other Transaction Documents for and on behalf of the HUF as well as on behalf of the Karta and each of the members/coparceners of HUF in their personal capacity.
cc) In case of the Borrower being an HUF, the Karta and each of the other members of the HUF, shall in addition to the HUF, be personally and fully liable, on a joint and several basis to the Lender for the Borrower's Dues and for performance of the obligations of the Borrower under this Agreement and the other Transaction Documents.
dd) No demand notice under IBC or the SARFAESI Act or any other has been issued to the Borrower.
ee) All contracts, would materially agreements and adversely affect arrangements entered into by the validity Borrower with its respective Affiliates are on arm's length basis and all terms of such contracts, agreements and arrangements are in accordance with the acceptable commercial practices, and none of such contracts, agreements and arrangements shall result in Material Adverse Effect. The Borrower is not party to any contracts or agreements or arrangements with any of the transactions contemplated by this Loan Agreement its Affiliates under which there are any outstanding obligations or the Indenture, or impair the ability liabilities except in ordinary course of the Borrower to perform its obligations under this Loan Agreement or the Indenture, business and in accordance with acceptable commercial practices or as contemplated hereby expressly permitted under the terms of this Agreement. However, in the event that it is discovered or thereby, nor, made known to the knowledge Lender on any such transaction, the Lender's determination of whether any arrangement/ contract/ agreement is in accordance with acceptable commercial terms or not, shall be final and binding on the Borrower, is there any basis therefor.
ff) The Borrower shall preserve and maintain its legal status and existence and shall be engaged only in such activities as stated in its constitutional documents and shall procure and keep valid all clearances required under Applicable Law for maintenance of its existence and for conduct of its business.
Appears in 1 contract
Samples: Car Loan Agreement
Representations and Warranties by the Borrower. The Borrower represents and warrants as followsthat:
(a) The Borrower is a corporation, corporation duly organized, organized and validly existing and in good standing under the laws of the State of Delaware, has the power Ohio and authority duly authorized to own its properties and carry on its do business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including a foreign corporation under the Statelaws of Colorado.
(b) The Borrower has the power and authority and has been duly authorized to execute and deliver enter into the Bond Documents to which the Borrower Documentsis a party, and to carry out perform all of the transactions contemplated hereby and therebyBorrower's obligations thereunder, and has duly authorized the execution, delivery and performance of each no approval or other action by any governmental authority or agency or other person is required in connection therewith except such as have been obtained as of the foregoingdate of execution and delivery hereof, or, which relate to the renovation or construction of the Project and cannot reasonably be obtained by such date.
(c) Neither The willingness of the Issuer to issue the Series 2001 Bonds for purposes of financing costs of the Project has induced the Borrower to locate the Project within the boundaries of the Issuer.
(d) The Project will create or preserve jobs and employment opportunities within the boundaries of the State and the Issuer, thereby improving the economic prosperity and general welfare of the State and the Issuer.
(e) The Borrower is not subject to any contractual or other limitation or provision of any nature whatsoever which in any way limits, restricts or prevents the Borrower from entering into the Bond Documents to which the Borrower is a party, or performing any of the Borrower's obligations thereunder; and the execution nor and delivery of the Bond Documents to which the Borrower Documentsis a party, nor the consummation of the transactions contemplated hereby or thereby, nor and the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts thereof will not conflict with or results result in a breach of or will constitute a default under any of the terms, conditions or provisions of the Borrower's Articles of Incorporation, Code of Regulations, or actions of its shareholders, Board of Directors or any legal restriction committee thereof, or other corporate organizational document nor of any restriction, agreement or instrument to which the Borrower is now a party or by which it the Borrower is bound, or constitutes of any law or regulation, or of any writ, order or decree of any court or governmental agency, or constitute a default under any of the foregoing foregoing, or violates result in the creation or imposition of any judgmentlien, ordercharge or encumbrance upon any of the properties or assets of the Borrower pursuant to the terms of any of the foregoing, except as contemplated by the terms of the Bond Documents.
(f) The Bond Documents to which the Borrower is a party have been duly authorized, executed and delivered by the Borrower and constitute legal, valid and binding obligations of the Borrower in accordance with their respective terms.
(g) The acquisition, renovation, construction, equipping, installation and operation of the Project will comply with all applicable zoning, planning, building, environmental and other regulations of the governmental authorities having jurisdiction of the Project, and all necessary permits, licenses, consents and permissions necessary for the Project have been or will be obtained.
(h) Except as disclosed to the Letter of Credit Bank, there are no actions, suits or proceedings pending, or to the knowledge of the Borrower threatened, against or affecting the Borrower before any court or before any governmental or administrative body or agency which might result in any material adverse change in the operations, business, property, assets or condition (financial or otherwise) of the Borrower; and the Borrower is not in default with respect to or under any applicable statute, rule, writ, injunction, decree, law, rule order or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority governmental agency which would might have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees consequences that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project is located wholly within Darlington County, South Carolina.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement operations, business, property or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, nor, to the knowledge assets of the Borrower. The Borrower does not control, and is there not controlled by, the Letter of Credit Bank.
(i) In connection with any basis thereforlease or grant by the Borrower of the use of the Project, the Borrower shall require that the lessee or user of any portion of the Project shall not use that portion of the Project in any manner which would violate the covenants set forth in the Tax Regulatory Agreements.
Appears in 1 contract
Samples: Loan Agreement (Peco Ii Inc)
Representations and Warranties by the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing, wherever such qualification is required, including the State.
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution nor delivery of the Borrower Documents, nor the consummation of the transactions contemplated hereby or thereby, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, conflicts with or results in a breach of or will constitute a default under any of the terms, conditions or provisions or any legal restriction of any agreement or instrument to which the Borrower is now a party or by which it is bound, or constitutes a default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the ProjectPlant.
(e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's ’s knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project Plant does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity entity, organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
(l) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The working capital constituting the Project is located wholly within Darlington County, South Carolinawill be used solely in connection with the Borrower’s operation of the Plant or to pay costs of issuance of the Bonds.
(o) There is not now pending or, to the knowledge of the Borrower, threatened, any suit, action or proceeding against or affecting the Borrower by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to the Borrower, would materially and adversely affect the validity of any of the transactions contemplated by this Loan Agreement or the Indenture, or impair the ability of the Borrower to perform its obligations under this Loan Agreement or the Indenture, or as contemplated hereby or thereby, nor, to the knowledge of the Borrower, is there any basis therefor.
(p) The Project is of the type authorized and permitted by the Act, and the Project is substantially the same in all material respects to that described in the notice of public hearing published in The Darlington News and Post on June 1, 1994.
(q) The Plant is located wholly within Darlington County, South Carolina.
(r) The Borrower will not take any action or omit to take any action or permit any action which is within its control to be taken or omitted which would impair the excludability from gross income for federal income taxation purposes of interest on the Series 1994A Bonds.
Appears in 1 contract
Samples: Loan Agreement (RBC Bearings INC)
