Common use of Representations of the Borrower Clause in Contracts

Representations of the Borrower. The Borrower represents and warrants that: (a) the representations and warranties set forth in the Loan Documents are true and correct in all material respects on and as of the 2017 Refinancing Effective Date after giving effect hereto with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); (b) no Event of Default or Default was continuing on and as of the 2017 Refinancing Effective Date after giving effect hereto and to the extension of credit requested to be made on the 2017 Refinancing Effective Date; (c) Immediately after giving effect to the transactions contemplated hereunder on the 2017 Refinancing Effective Date, (i) the fair value of the assets of Holdings and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of Holdings and its Subsidiaries on a consolidated basis; (ii) the present fair saleable value of the property of Holdings and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of Holdings and its Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) Holdings and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) Holdings and its Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the 2017 Refinancing Effective Date; and (d) As of the 2017 Refinancing Effective Date, immediately after giving effect to the consummation of the transactions contemplated hereunder, Holdings does not intend to, and Holdings does not believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such Subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiary.

Representations of the Borrower. The Borrower represents and warrants that: (a) the representations and warranties set forth in the Loan Documents are true and correct in all material respects on and as of the 2017 Refinancing Incremental Effective Date after giving effect hereto with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); (b) no Event of Default or Default was continuing on and as of the 2017 Refinancing Incremental Effective Date after giving effect hereto and to the extension of credit requested to be made on the 2017 Refinancing Incremental Effective Date; (c) Immediately immediately after giving effect to the transactions contemplated hereunder on the 2017 Refinancing Incremental Effective Date, (i) the fair value of the assets of Holdings the Borrower and its the Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of Holdings the Borrower and its the Subsidiaries on a consolidated basis; (ii) the present fair saleable value of the property of Holdings the Borrower and its the Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of Holdings the Borrower and its the Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) Holdings the Borrower and its the Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) Holdings the Borrower and its the Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the 2017 Refinancing Incremental Effective Date; and (d) As as of the 2017 Refinancing Incremental Effective Date, immediately after giving effect to the consummation of the transactions contemplated hereunderhereunder on the 2017 Incremental Effective Date, Holdings the Borrower does not intend to, and Holdings the Borrower does not believe that it or any of its Subsidiaries subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such Subsidiary subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiarysubsidiary.

Representations of the Borrower. The Borrower represents and warrants that: (a) the representations and warranties set forth in the Loan Documents are true and correct in all material respects on and as of the 2017 2015 Refinancing Effective Date after giving effect hereto with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); (b) no Event of Default or Default was continuing on and as of the 2017 2015 Refinancing Effective Date after giving effect hereto and to the extension of credit requested to be made on the 2017 2015 Refinancing Effective Date; (c) Immediately after giving effect to the transactions contemplated hereunder on the 2017 2015 Refinancing Effective Date, (i) the fair value of the assets of Holdings and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of Holdings and its Subsidiaries on a consolidated basis; (ii) the present fair saleable value of the property of Holdings and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of Holdings and its Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) Holdings and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) Holdings and its Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the 2017 2015 Refinancing Effective Date; and (d) As of the 2017 2015 Refinancing Effective Date, immediately after giving effect to the consummation of the transactions contemplated hereunder, Holdings does not intend to, and Holdings does not believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such Subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiary.

Representations of the Borrower. The Borrower represents and warrants that: (a) the representations and warranties set forth in the Loan Documents are true and correct in all material respects on and as of the 2017 Refinancing 2016 Incremental Effective Date after giving effect hereto with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); (b) no Event of Default or Default was continuing on and as of the 2017 Refinancing 2016 Incremental Effective Date after giving effect hereto and to the extension of credit requested to be made on the 2017 Refinancing 2016 Incremental Effective Date; (c) Immediately after giving effect to the transactions contemplated hereunder on the 2017 Refinancing 2016 Incremental Effective Date, (i) the fair value of the assets of Holdings and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of Holdings and its Subsidiaries on a consolidated basis; (ii) the present fair saleable value of the property of Holdings and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of Holdings and its Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) Holdings and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) Holdings and its Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the 2017 Refinancing 2016 Incremental Effective Date; and; (d) As of the 2017 Refinancing 2016 Incremental Effective Date, immediately after giving effect to the consummation of the transactions contemplated hereunder, Holdings does not intend to, and Holdings does not believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such Subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiary; and (e) As of the 2016 Incremental Effective Date, immediately after giving effect to the consummation of the transactions contemplated hereunder, the Affiliate Lenders in the aggregate own Term Loans with an aggregate principal amount not in excess of 30% of the aggregate principal amount of all Term Loans outstanding as of such date.

Representations of the Borrower. The Borrower represents and warrants that: (a) the representations and warranties set forth in the Loan Documents are true and correct in all material respects on and as of the 2017 Refinancing Effective Date after giving effect hereto with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that the failure to obtain any Xxxxxxxx Incremental Approval (as defined below) on or prior to the 2017 Refinancing Effective Date shall not be deemed to be a breach of this clause (a) if the Borrower complies with Section 7 of this Agreement; (b) no Event of Default or Default was continuing on and as of the 2017 Refinancing Effective Date after giving effect hereto and to the extension of credit requested to be made on the 2017 Refinancing Effective Date; (c) Immediately immediately after giving effect to the transactions contemplated hereunder on the 2017 Refinancing Effective Date, (i) the fair value of the assets of Holdings the Borrower and its the Subsidiaries on a combined or consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of Holdings the Borrower and its the Subsidiaries on a combined or consolidated basis; (ii) the present fair saleable value of the property of Holdings the Borrower and its the Subsidiaries on a combined or consolidated basis will be greater than the amount that will be required to pay the probable liability of Holdings the Borrower and its the Subsidiaries on a combined or consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) Holdings the Borrower and its the Subsidiaries on a combined or consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) Holdings the Borrower and its the Subsidiaries on a combined or consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the 2017 Refinancing Effective Date; and (d) As as of the 2017 Refinancing Effective Date immediately after giving effect to the transactions contemplated hereunder on the 2017 Refinancing Effective Date, immediately after giving effect to the consummation of the transactions contemplated hereunder, Holdings Borrower does not intend to, and Holdings the Borrower does not believe that it or any of its Subsidiaries subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such Subsidiary subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiarysubsidiary.

Representations of the Borrower. The Borrower represents and warrants that: (a) each of the representations and warranties set forth made by any Credit Party in or pursuant to the Loan Credit Documents are is true and correct in all material respects on and as of the 2017 Refinancing Effective Incremental Facility No. 2 Closing Date after giving effect hereto with and to any extension of credit requested to be made on the same effect Incremental Facility No. 2 Closing Date as though if made on and as of such date, date (except to the extent such representations and warranties expressly relate to are specifically made as of an earlier date (date, in which case such representations and warranties shall be were true and correct in all material respects as of such earlier date) (for purposes of this representation and warranty, the reference to “Closing Date” in Section 3.05(c) of the Credit Agreement shall be deemed to refer to the Incremental Facility No. 2 Closing Date and such representation shall be made after giving effect to the Tranche C Incremental Term Loans made on the Incremental Facility No. 2 Closing Date); (b) no Default or Event of Default was continuing on the date of the Notice and no Default or Event of Default was has occurred and is continuing on and as of the 2017 Refinancing Effective Incremental Facility No. 2 Closing Date after giving effect hereto and to the any extension of credit requested to be made on the 2017 Refinancing Effective Incremental Facility No. 2 Closing Date; (c) Immediately each Credit Party has the power and authority to execute, deliver and perform its obligations under this Agreement and under each of the Credit Documents as amended or supplemented hereby to which it is a party, and, in the case of the Borrower, to make the borrowing contemplated hereunder, and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and each Credit Document as amended or supplemented hereby. Each Credit Party has duly executed and delivered this Agreement, and this Agreement and each Credit Document as amended or supplemented hereby constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except as enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought by proceeding in equity or at law); (d) no order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for those that have otherwise been obtained or made on or prior to the Incremental Facility No. 2 Closing Date and which remain in full force and effect on the Incremental Facility No. 2 Closing Date), or exemption or other action by, any Governmental Authority is required to be obtained or made by, or on behalf of, any Credit Party to authorize, or is required to be obtained or made by, or on behalf of, any Credit Party in connection with, the execution, delivery and performance of this Agreement or any Credit Document as amended or supplemented hereby or the legality, validity, binding effect or enforceability of this Agreement or any such Credit Document as amended or supplemented hereby; (e) the execution, delivery and performance of this Agreement and of the other Credit Documents as amended or supplemented hereby, the borrowings hereunder and the use of the proceeds thereof will not (i) contravene any provision of any material law, statute, rule or regulation or any order, writ, injunction or decree of any court or Governmental Authority, (ii) require any consent under, or violate or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or give rise to any right to accelerate or to require the prepayment, repurchase of redemption of any obligation under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any Credit Party or any of its Subsidiaries pursuant to the terms of the Credit Agreement or any material indenture, mortgage, deed of trust, other credit agreement or loan agreement, or any other material agreement, contract or instrument, in each case to which any Credit Party or any of its Subsidiaries is a party or by which it or any its property or assets is bound or to which it may be subject, or (iii) violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement or by-laws (or equivalent organizational documents), as applicable, of any Credit Party or any of its Subsidiaries; (f) [reserved]; (g) after giving effect to the transactions contemplated hereunder on borrowing of the 2017 Refinancing Effective DateTranche C Incremental Term Loans, (i) the fair value First Lien Leverage Ratio will not exceed 3.00 to 1.00 as of the assets last day of Holdings and its Subsidiaries on a consolidated basisthe most recently ended Calculation Period, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of Holdings and its Subsidiaries on a consolidated basis; (ii) the present fair saleable value Borrower will be, determined as of the property last day of Holdings the most recently ended Calculation Period, in compliance with the financial covenants contained in Sections 6.08 and its Subsidiaries on a consolidated basis will be greater than 6.09 of the amount that will be required to pay the probable liability of Holdings Credit Agreement and its Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) Holdings and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) Holdings and its Subsidiaries on a consolidated basis the Total Leverage Ratio will not have unreasonably small capital with which to conduct exceed 4.00:1.00 as of the businesses last day of the most recently ended Calculation Period, in which they are engaged as such businesses are now conducted and are proposed to be conducted following the 2017 Refinancing Effective Dateeach case determined on an Incremental Pro Forma Basis; and (dh) As the terms of this Agreement comply with the requirements of Section 2.25 of the 2017 Refinancing Effective Date, immediately after giving effect to the consummation of the transactions contemplated hereunder, Holdings does not intend to, and Holdings does not believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts Credit Agreement (as they mature, taking into account the timing and amounts of cash to be received by it or any such Subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiaryamended hereby).

Representations of the Borrower. The Borrower represents and warrants that: (a) each of the representations and warranties set forth made by any Credit Party in or pursuant to the Loan Credit Documents are is true and correct in all material respects on and as of the 2017 Refinancing Effective Incremental Facility Closing Date after giving effect hereto with hereto, to any extension of credit requested to be made on the same effect Incremental Facility Closing Date and to the consummation of any Acquisition made on the Incremental Facility Closing Date as though if made on and as of such date, date (except to the extent such representations and warranties expressly relate to are specifically made as of an earlier date (date, in which case such representations and warranties shall be were true and correct in all material respects as of such earlier date) (for purposes of this representation and warranty, the reference to “Closing Date” in Section 3.05(c) of the Credit Agreement shall be deemed to refer to the Incremental Facility Closing Date and such representation shall be made after giving effect to the Tranche B Incremental Term Loans made on the Incremental Facility Closing Date); (b) no Default or Event of Default was continuing on the date of the Notice and no Default or Event of Default was has occurred and is continuing on and as of the 2017 Refinancing Effective Incremental Facility Closing Date after giving effect hereto and hereto, to the any extension of credit requested to be made on the 2017 Refinancing Effective Incremental Facility Closing Date and to consummation of any Acquisition made on the Incremental Facility Closing Date; (c) Immediately each Credit Party has the power and authority to execute, deliver and perform its obligations under this Agreement and under each of the Credit Documents as amended or supplemented hereby to which it is a party, and, in the case of the Borrower, to make the borrowing contemplated hereunder, and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and each Credit Document as amended or supplemented hereby. Each Credit Party has duly executed and delivered this Agreement, and this Agreement and each Credit Document as amended or supplemented hereby constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except as enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought by proceeding in equity or at law); (d) no order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for those that have otherwise been obtained or made on or prior to the Incremental Facility Closing Date and which remain in full force and effect on the Incremental Facility Closing Date), or exemption or other action by, any Governmental Authority is required to be obtained or made by, or on behalf of, any Credit Party to authorize, or is required to be obtained or made by, or on behalf of, any Credit Party in connection with, the execution, delivery and performance of this Agreement or any Credit Document as amended or supplemented hereby or the legality, validity, binding effect or enforceability of this Agreement or any such Credit Document as amended or supplemented hereby; (e) the execution, delivery and performance of this Agreement and of the other Credit Documents as amended or supplemented hereby, the borrowings hereunder and the use of the proceeds thereof will not (i) contravene any provision of any material law, statute, rule or regulation or any order, writ, injunction or decree of any court or Governmental Authority, (ii) require any consent under, or violate or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or give rise to any right to accelerate or to require the prepayment, repurchase of redemption of any obligation under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any Credit Party or any of its Subsidiaries pursuant to the terms of the Credit Agreement or any material indenture, mortgage, deed of trust, other credit agreement or loan agreement, or any other material agreement, contract or instrument, in each case to which any Credit Party or any of its Subsidiaries is a party or by which it or any its property or assets is bound or to which it may be subject, or (iii) violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement or by-laws (or equivalent organizational documents), as applicable, of any Credit Party or any of its Subsidiaries; (f) each Acquisition that constitutes an Investment constitutes or shall constitute a Permitted Acquisition under the Credit Agreement; (g) after giving effect to the transactions contemplated hereunder on borrowing of the 2017 Refinancing Effective DateTranche B Incremental Term Loans, (i) the fair value First Lien Leverage Ratio will not exceed 3.00 to 1.00 as of the assets last day of Holdings and its Subsidiaries on a consolidated basisthe most recently ended Calculation Period, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of Holdings and its Subsidiaries on a consolidated basis; (ii) the present fair saleable value Borrower will be, determined as of the property last day of Holdings the most recently ended Calculation Period, in compliance with the financial covenants contained in Sections 6.08 and its Subsidiaries on a consolidated basis will be greater than 6.09 of the amount that will be required to pay the probable liability of Holdings Credit Agreement and its Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) Holdings and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) Holdings and its Subsidiaries on a consolidated basis the Total Leverage Ratio will not have unreasonably small capital with which to conduct exceed 4.00:1.00 as of the businesses last day of the most recently ended Calculation Period, in which they are engaged as such businesses are now conducted and are proposed to be conducted following the 2017 Refinancing Effective Dateeach case determined on an Incremental Pro Forma Basis; and (dh) As the terms of this Agreement comply with the requirements of Section 2.25 of the 2017 Refinancing Effective Date, immediately after giving effect to the consummation of the transactions contemplated hereunder, Holdings does not intend to, and Holdings does not believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts Credit Agreement (as they mature, taking into account the timing and amounts of cash to be received by it or any such Subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiaryamended hereby).

Representations of the Borrower. The Borrower represents makes the following representations, understanding, after such consultation with such legal counsel as deemed appropriate, that the exclusion from gross income of interest on the Bonds for federal income tax purposes is dependent on the accuracy and warrants thattruthfulness of such representations: (a) the representations and warranties set forth in the Loan Documents are true and correct in all material respects on and as At least ninety-five percent (95%) of the 2017 Refinancing Effective Date after giving effect hereto with net proceeds of the same effect as though made on and as Bonds will be used to pay the costs of such dateacquiring, except to constructing or equipping the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);Project. (b) no Event The Borrower is not a Principal User or a Related Person with respect to any facilities located in the State of Default or Default was continuing on and as Iowa which were financed with the proceeds of Tax-Exempt Obligations other than the 2017 Refinancing Effective Date after giving effect hereto and Bonds pursuant to the extension of credit requested to be made on the 2017 Refinancing Effective Date;Indenture. (c) Immediately after giving effect The Borrower is the only Principal User for the Project and there are no Related Persons to the transactions contemplated hereunder on the 2017 Refinancing Effective Date, (i) the fair value of the assets of Holdings and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of Holdings and its Subsidiaries on a consolidated basis; (ii) the present fair saleable value of the property of Holdings and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of Holdings and its Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) Holdings and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) Holdings and its Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the 2017 Refinancing Effective Date; andBorrower. (d) As of the 2017 Refinancing Effective issue date of the Bonds, there are no outstanding qualified small issue bonds issued by any issuer, the proceeds of which were used primarily for facilities located in the same municipality as the Project, or in the same county (but not in any incorporated municipality) as the Project, and the Principal User of such facilities and the Principal User of the Project are the same or are Related Persons. (e) The sum of (1) the issue price of the Bonds, plus (2) the capital expenditures paid or incurred in the three-year period beginning three years before the issue date of the Bonds does not exceed $10,000,000. (f) The Borrower covenants not to allow the sum of (1) the face amount of the Bonds, plus (2) the capital expenditures paid or incurred in the three-year period beginning three years before the issue date of the Bonds, plus (3) the capital expenditures to be paid or incurred in the period beginning on the issue date of the Bonds and ending three years after the Issue Date, immediately after giving effect to exceed $10,000,000. (g) As determined by the Underwriter and certified by the Underwriter in Exhibit B attached hereto, the average weighted maturity of the Bonds is not greater than 14.96 years. The Borrower represents that the average reasonably expected economic life (determined as of the date hereof) of those portions of the Project financed with proceeds of the Bonds is 14.52 years. Thus, the average maturity of the Bonds does not exceed one hundred twenty percent (120%) of the average reasonably expected life (determined as provided on Exhibit D attached hereto as of the date hereof) of the facilities financed with proceeds of such obligations within the meaning of Section 147(b) of the Code. (h) Within the meaning of Section 147(c) of the Code, no portion of the proceeds of the Bonds will be used (directly or indirectly) for the acquisition of land (or an interest therein) to be used for farming purposes and not more than twenty-five percent (25%) of the net proceeds of such obligations will be used (directly or indirectly) for the acquisition of any other land (or interest therein). (i) Within the meaning of Section 147(d) of the Code, to the consummation extent any portion of the transactions contemplated hereunder, Holdings does not intend to, and Holdings does not believe that it proceeds of the Bonds will be used for costs of the acquisition of any property (or any of its Subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such Subsidiary an interest therein) and the timing first use of such property was not pursuant to such acquisition, within two years following the date of issuance of the Bonds rehabilitation expenditures will be incurred with respect to such property in an amount not less than fifteen percent (15%) (one hundred percent (100%) in the case of property not constituting a building (and amounts equipment therefor)) of cash the portion of such costs financed with proceeds of the Bonds. (The term “rehabilitation expenditures” means any amount properly chargeable to be payable on the capital account which is incurred by the person acquiring the building or property (or additions or improvements to property) in respect connection with the rehabilitation of the building. In the case of an integrated operation contained in a building before its Indebtedness acquisition, such terms include rehabilitating existing equipment in such building or replacing it with equipment having substantially the Indebtedness of any such Subsidiarysame function.)

Representations of the Borrower. The Borrower represents Borrowers represent and warrants warrant that: (a) the representations and warranties set forth in the Loan Documents are true and correct in all material respects on and as of the 2017 Refinancing First Amendment Effective Date after giving effect hereto with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); (b) no Event of Default or Default was continuing on and as of the 2017 Refinancing First Amendment Effective Date after giving effect hereto and to the extension of credit requested to be made on the 2017 Refinancing First Amendment Effective Date; (c) Immediately immediately after giving effect to the transactions contemplated hereunder on the 2017 Refinancing First Amendment Effective Date, to the best of management’s knowledge (without having led a recent sale process and after giving effect to recent market and currency fluctuations) (i) the sum of the debt (excluding contingent liabilities for which no accrual has been made in the accounts) of the Parent and its Subsidiaries, taken as a whole, does not exceed the fair value of the assets of Holdings the Parent and its Subsidiaries on Subsidiaries, taken as a consolidated basiswhole, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of Holdings and its Subsidiaries on a consolidated basis; (ii) the present fair saleable value of the property assets of Holdings the Parent and its Subsidiaries on Subsidiaries, taken as a consolidated basis will be greater whole, is not less than the amount that will be required to pay the probable liability liabilities (excluding contingent liabilities) of Holdings the Parent and its Subsidiaries on Subsidiaries, taken as a consolidated basis whole, on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities they become absolute and matured; , (iii) Holdings the cash flows of the Parent and its Subsidiaries on Subsidiaries, taken as a consolidated basis will be able whole, are not unreasonably small in relation to pay their debts the business of the Parent and liabilitiesits Subsidiaries, directtaken as a whole, subordinatedcontemplated as of the First Amendment Effective Date, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) Holdings the Parent and its Subsidiaries on Subsidiaries, taken as a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the 2017 Refinancing Effective Date; and (d) As of the 2017 Refinancing Effective Datewhole, immediately after giving effect to the consummation of the transactions contemplated hereunder, Holdings does do not intend toto incur, and Holdings does not or believe that it or any of its Subsidiaries willthey will incur, incur debts (including current obligations and contingent liabilities) beyond its their ability to pay such debt as they mature in the ordinary course of business, and (v) no German Obligor is unable to pay its debts as they maturefall due (zahlungsunfähig) within the meaning of section 17 of the German Insolvency Code, taking into account or is overindebted (überschuldet) within the timing and amounts meaning of cash to be received by it or any such Subsidiary and section 19 of the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such SubsidiaryGerman Insolvency Code.

Representations of the Borrower. The Borrower represents and warrants that: (a) each of the representations and warranties set forth made by any Credit Party in or pursuant to the Loan Credit Documents are is true and correct in all material respects on and as of the 2017 Refinancing Effective Incremental Facility Closing Date after giving effect hereto with and to any extension of credit requested to be made on the same effect Incremental Facility Closing Date as though if made on and as of such date, date (except to the extent such representations and warranties expressly relate to are specifically made as of an earlier date (date, in which case such representations and warranties shall be were true and correct in all material respects as of such earlier date) (for purposes of this representation and warranty, the reference to “Closing Date” in Section 3.05(c) of the Credit Agreement shall be deemed to refer to the Incremental Facility Closing Date and such representation shall be made after giving effect to the Tranche B Incremental Term Loans made on the Incremental Facility Closing Date); (b) no Default or Event of Default was continuing on the date of the Notice and no Default or Event of Default was has occurred and is continuing on and as of the 2017 Refinancing Effective Incremental Facility Closing Date after giving effect hereto and to the any extension of credit requested to be made on the 2017 Refinancing Effective Incremental Facility Closing Date; (c) Immediately each Credit Party has the power and authority to execute, deliver and perform its obligations under this Agreement and under each of the Credit Documents as amended or supplemented hereby to which it is a party, and, in the case of the Borrower, to make the borrowing contemplated hereunder, and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and each Credit Document as amended or supplemented hereby. Each Credit Party has duly executed and delivered this Agreement, and this Agreement and each Credit Document as amended or supplemented hereby constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except as enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought by proceeding in equity or at law); (d) no order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for those that have otherwise been obtained or made on or prior to the Incremental Facility Closing Date and which remain in full force and effect on the Incremental Facility Closing Date), or exemption or other action by, any Governmental Authority is required to be obtained or made by, or on behalf of, any Credit Party to authorize, or is required to be obtained or made by, or on behalf of, any Credit Party in connection with, the execution, delivery and performance of this Agreement or any Credit Document as amended or supplemented hereby or the legality, validity, binding effect or enforceability of this Agreement or any such Credit Document as amended or supplemented hereby; (e) the execution, delivery and performance of this Agreement and of the other Credit Documents as amended or supplemented hereby, the borrowings hereunder and the use of the proceeds thereof will not (i) contravene any provision of any material law, statute, rule or regulation or any order, writ, injunction or decree of any court or Governmental Authority, (ii) require any consent under, or violate or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or give rise to any right to accelerate or to require the prepayment, repurchase of redemption of any obligation under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any Credit Party or any of its Subsidiaries pursuant to the terms of the Credit Agreement or any material indenture, mortgage, deed of trust, other credit agreement or loan agreement, or any other material agreement, contract or instrument, in each case to which any Credit Party or any of its Subsidiaries is a party or by which it or any its property or assets is bound or to which it may be subject, or (iii) violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement or by-laws (or equivalent organizational documents), as applicable, of any Credit Party or any of its Subsidiaries; (f) after giving effect to the transactions contemplated hereunder on borrowing of the 2017 Refinancing Effective DateTranche B Incremental Term Loans, (i) the fair value First Lien Leverage Ratio will not exceed 3.00 to 1.00 as of the assets last day of Holdings and its Subsidiaries on a consolidated basisthe most recently ended Calculation Period, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of Holdings and its Subsidiaries on a consolidated basis; (ii) the present fair saleable value Borrower will be, determined as of the property last day of Holdings the most recently ended Calculation Period, in compliance with the financial covenants contained in Sections 6.08 and its Subsidiaries on a consolidated basis will be greater than 6.09 of the amount that will be required to pay the probable liability of Holdings Credit Agreement and its Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) Holdings and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) Holdings and its Subsidiaries on a consolidated basis the Total Leverage Ratio will not have unreasonably small capital with which to conduct exceed 4.00:1.00 as of the businesses last day of the most recently ended Calculation Period, in which they are engaged as such businesses are now conducted and are proposed to be conducted following the 2017 Refinancing Effective Dateeach case determined on an Incremental Pro Forma Basis; and (dg) As the terms of this Agreement comply with the requirements of Section 2.25 of the 2017 Refinancing Effective Date, immediately after giving effect to the consummation of the transactions contemplated hereunder, Holdings does not intend to, and Holdings does not believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such Subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such SubsidiaryCredit Agreement.