Representations and Warranties of the Borrowers Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such Borrower has not incurred, and does not presently expect to incur, any withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such Borrower and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plans, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established or maintained, or to which contributions are or have been made or should be made according to the terms of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
