REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The representations and warranties of the Borrower set forth in the Bond Purchase Agreement, dated June , 2019 (the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees with, the Remarketing Agent as follows: (a) It has the authority to take all actions required or permitted to be taken by it under, and to perform and observe the covenants and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents"). (b) It has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date for: (i) the execution, delivery and performance of the Closing Documents that have been executed in connection with the transactions contemplated hereby and by the Offering Documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States. (c) The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been duly executed and delivered by it and constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws, or equitable principles relating to or limiting creditors’ rights generally. (d) The execution and delivery of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, agreement or instrument to which the Borrower is a party or by which it or any of its properties is bound other than those provided for in or contemplated by the Indenture. (e) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States. (f) Other than as described in the Offering Documents, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of the Borrower, threatened against or affecting it wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on the financial condition or solvency of the Borrower or the ability of the Borrower to perform its obligations under the Closing Documents. (g) The Borrower makes no representation as to information in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion therein. (h) The Borrower has taken no action, and has not omitted to take any action, which action or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income to the holders thereof for federal income tax purposes. (i) The Borrower will cooperate with the Remarketing Agent in obtaining the qualification of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that the Borrower shall not be required to incur any expense, consent to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subject.
Appears in 2 contracts
Samples: Remarketing Agreement, Remarketing Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower makes the following representations, warranties and covenants, all of which, together with the other representations and warranties agreements of the Borrower set forth contained in the Bond Purchase this Junior Loan Agreement, dated June , 2019 (are relied upon by the "Bond Purchase Issuer and the Trustee and serve as a basis for the undertakings of the Issuer and the Trustee contained in this Junior Loan Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees with, the Remarketing Agent as follows:
(a) It The Borrower is a limited partnership duly organized, validly existing and in good standing under the laws of the State of California and duly qualified to conduct its business under the laws of the State and in every other state in which the nature of its business requires such qualification, has the full legal right, power and authority to take all actions required or permitted to be taken by it underenter into this Junior Loan Agreement and the other Junior Loan Documents, and to perform carry out and observe consummate all transactions contemplated hereby and by the covenants other Junior Loan Documents, and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, by proper partnership action has duly taken all action necessary to be taken by it prior to such date for: (i) authorized the execution, delivery and performance of this Junior Loan Agreement and the Closing Documents that have been executed other Junior Loan Documents. All general partners, if any, of the Borrower are duly incorporated, organized and in connection with good standing under the transactions contemplated hereby laws of their respective states of organization and by are duly qualified to transact business in the Offering Documents; State.
(b) The Borrower has the legal right, power and authority to (i) own its properties and assets, including, but not limited to, the Project, (ii) to carry on its business as now being conducted and the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made Borrower contemplates it to be conducted with respect to compliance with the securities or Blue Sky laws of Project and (iii) execute and deliver, carry out its obligations under, and close the various states of transactions provided for in, the United StatesJunior Loan Documents to which it is a party.
(c) The Closing Documents that have been executed in connection with the consummation officers of the transactions contemplated hereby Borrower executing this Junior Loan Agreement and by the Offering other Junior Loan Documents are duly and properly in office and fully authorized to execute the same. This Junior Loan Agreement and the other Junior Loan Documents have been duly authorized, executed and delivered by it the Borrower and, assuming due authorization, execution and delivery by the other parties thereto, will constitute its the legal, valid and binding obligations, agreements of the Borrower enforceable against it the Borrower; except in accordance with their respective terms, except each case as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or similar laws, or equitable principles relating to or limiting other laws affecting the enforcement of creditors’ rights generally, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity and by public policy.
(d) No consent or approval of any trustee or holder of any indebtedness of the Borrower, and to the best knowledge of the Borrower and with respect to the Borrower, no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of this Junior Loan Agreement or the other Junior Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, except as have been obtained or made and as are in full force and effect.
(e) The execution and delivery of this Junior Loan Agreement and the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering other Junior Loan Documents, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and the fulfillment of or compliance with the terms and conditions hereof and thereof, will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, conflict with or constitute a violation or breach of or default (with due notice or the passage of time or both) under
(i) the organizational or other governing documents of the Borrower or to the best knowledge of the Borrower and with respect to the Borrower, (ii) any applicable law or administrative rule or regulation, or result in the creation any applicable court or imposition of administrative decree or order, (iii) any mortgage, liendeed of trust, charge Junior Loan Agreement, lease, contract or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, other agreement or instrument to which the Borrower is a party or by which it or its properties or assets are otherwise subject or bound, or (iv), except as provided in the Junior Loan Documents, result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of its properties is bound other than those provided for in the property or contemplated by the Indenture.
(e) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower assets of the Closing Documents Borrower, which conflict, violation, breach, default, lien, charge or encumbrance might have consequences that have been executed in connection with would materially and adversely affect the consummation of the transactions contemplated hereby and by this Junior Loan Agreement or the Offering Documents have been obtainedJunior Loan Documents, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities financial condition, assets, properties or Blue Sky laws operations of the various states of the United StatesBorrower.
(f) Other than as described in the Offering Documents, there There is no action, suit, proceeding, inquiry or investigation investigation, before or by any courtcourt or federal, public board state, municipal or body pending orother governmental authority, pending, or to the knowledge of the Borrower, threatened after reasonable investigation, threatened, against or affecting it wherein an unfavorable decisionthe Borrower or the assets, ruling properties or finding is likely operations of the Borrower which, if determined adversely to the Borrower or its interests, would have a material adverse effect on upon the consummation of the transactions contemplated by, or the validity of, this Junior Loan Agreement or the other Junior Loan Documents or upon the financial condition condition, assets, properties or solvency operations of the Borrower, and the Borrower is not in default (and no event has occurred and is continuing which with the giving of notice or the passage of time or both could constitute a default) with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental authority, which default might have consequences that would materially and adversely affect the consummation of the transactions contemplated by this Junior Loan Agreement or the other Junior Loan Documents or the financial condition, assets, properties or operations of the Borrower. All tax returns (federal, state and local) required to be filed by or on behalf of the Borrower have been filed, and all taxes shown thereon to be due, including interest and penalties, except such, if any, as are being actively contested by the Borrower in good faith, have been paid or adequate reserves have been made for the payment thereof which reserves, if any, are reflected in the audited financial statements described therein. The Borrower enjoys the peaceful and undisturbed possession of all of the Property.
(g) The Project and the operation of the Project (in the manner contemplated by the Junior Loan Documents) conform with the requirements of the Act as well as all applicable zoning, planning, building and environmental laws, ordinances and regulations of governmental authorities having jurisdiction over the Project.
(h) The Borrower has filed or caused to be filed all federal, state and local tax returns which are required to be filed or has obtained appropriate extensions therefor, and has paid or caused to be paid all taxes as shown on said returns or on any assessment received by it, to the extent that such taxes have become due.
(i) The Borrower is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party which default would materially adversely affect the transactions contemplated by the Junior Loan Documents or the operations of the Borrower or the enforceability of the Junior Loan Documents to which the Borrower is a party or the ability of the Borrower to perform its all obligations under the Closing Documentsthereunder.
(gj) The Borrower makes no representation as agrees to information pay all costs of maintenance and repair, all Taxes and assessments, insurance premiums (including public liability insurance and insurance against damage to or destruction of the Project) concerning or in any way related to the Project, or any part thereof, and any expenses or renewals thereof, and any other governmental charges and impositions whatsoever, foreseen or unforeseen, and all utility and other charges and assessments concerning or in any way related to the Project.
(k) If the Borrower is a partnership, all of the partnership interests in the Offering Documents Borrower are validly issued and are fully registered, if required, with the applicable governmental authorities and/or agencies, and, except as set forth in the Borrower’s Partnership Agreement, there are no outstanding options or rights to purchase or acquire those interests. If the Borrower is a limited liability company, all of the ownership interests in the Borrower are validly issued and are fully registered, if required, with the applicable governmental authorities and/or agencies, and there are no outstanding options or rights to purchase or acquire those interests. Nothing in this Junior Loan Agreement shall prevent the Borrower from issuing additional partnership interests or ownership interests if such units are issued in accordance with all applicable securities laws, provided such issuance is in accordance with the Borrower’s Partnership Agreement.
(l) The representations and warranties of the Borrower contained in the Regulatory Agreement are true and accurate.
(m) The information, statements or reports furnished in writing to the Issuer by the Borrower in connection with this Junior Loan Agreement or the consummation of the transactions contemplated hereby do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; and the representations and warranties of the Borrower and the statements, information and descriptions contained in the Borrower’s closing certificates, as of the Delivery Date, are true and correct in all material respects, do not contain any untrue statement of a material fact, and do not omit to state a material fact necessary to make the representations, warranties, statements, information and descriptions contained therein, in the light of the circumstances under which they were made, not misleading; and any estimates or the assumptions contained in any certificate of the Borrower delivered as of the Delivery Date are reasonable.
(n) The Borrower acknowledges that (i) it understands the nature and structure of the transactions relating to the Credit Provider financing of the Project, (ii) it is familiar with the provisions of all of the documents and provided instruments relating to the financing, (iii) it understands the risks inherent in such transactions, including without limitation the risk of loss of the Project, and (iv) it has not relied on the Issuer or the Trustee for any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by the Credit Provider for inclusion thereinJunior Loan Documents or otherwise relied on the Issuer or the Trustee in any manner.
(ho) The Borrower has taken no actioncovenants to pay all third-party fees of the financing, and has including but not omitted to take any action, which action or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income limited to the holders thereof for federal income tax purposes.following:
(i) The Borrower will cooperate with All taxes and assessments of any type or character charged to the Remarketing Agent Issuer or to the Trustee affecting the amount available to the Issuer or the Trustee from payments to be received hereunder or in obtaining any way arising due to the qualification transactions contemplated hereby (including taxes and assessments assessed or levied by any public agency or governmental authority of whatsoever character having power to levy taxes or assessments) but excluding franchise taxes based upon the capital and/or income of the Bonds for offering Trustee and sale under taxes based upon or measured by the laws net income of such jurisdictions as the Remarketing Agent shall designateTrustee; provided provided, however, that the Borrower shall not be required have the right to incur protest any such taxes or assessments and to require the Issuer or the Trustee, at the Borrower’s expense, consent to service protest and contest any such taxes or assessments levied upon them and that the Borrower shall have the right to withhold payment of process any such taxes or assessments pending disposition of any such protest or contest unless such withholding, protest or contest would adversely affect the rights or interests of the Issuer or the Trustee;
(ii) All fees, charges and expenses of the Trustee for services rendered under the Indenture, as and when the same become due and payable;
(iii) The portion of the annual fee of the Issuer attributable to the Bonds (in addition to the fee attributable to the Senior Governmental Lender Note, which shall be payable in accordance with and pursuant to the Senior Loan Documents), payable as set forth in Section 18 of the Regulatory Agreement, and the fees and expenses of the Issuer or any jurisdiction agents, attorneys, accountants, consultants selected by the Issuer to act on its behalf in connection with this Junior Loan Agreement, the Regulatory Agreement or qualify to do business the Junior Loan Documents, including, without limitation, any and all expenses incurred in connection with the authorization, issuance and delivery of the Bonds, as applicable, or in connection with any jurisdiction where it is not now so subjectlitigation which may at any time be instituted involving this Junior Loan Agreement, the Regulatory Agreement, or the Junior Loan Documents or any of the other documents contemplated thereby, or in connection with the reasonable supervision or inspection of the Borrower, its properties, assets or operations or otherwise in connection with the administration of the foregoing; and
(iv) These obligations and those in Section 6.1 shall remain valid and in effect notwithstanding repayment of the loan hereunder or termination of this Junior Loan Agreement or the Indenture.
Appears in 2 contracts
Samples: Junior Loan Agreement, Junior Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower hereby represents and warrants that as of the date of this Amendment and after giving effect hereto (a) no event has occurred and is continuing which, after giving effect to this Amendment, constitutes a Default or an Event of Default, (b) the representations and warranties of the Borrower set forth contained in the Bond Purchase Agreement, dated June , 2019 (Loan Agreement and the "Bond Purchase Agreement"), relating to the Bonds other Financing Agreements are true and correct on and are hereby incorporated by reference herein, as of the date hereof to the same extent as though fully set forth herein. In addition, made on and as of the Borrower, by its execution date hereof, represents except to the extent such representations and warrants towarranties specifically relate to an earlier date, in which case they are true and covenants correct as of such earlier date, (c) the execution and agrees with, delivery by the Remarketing Agent as follows:
(a) It has Borrower of this Amendment and the authority to take all actions required or permitted to be taken performance by it under, and to perform and observe the covenants and agreements on its part contained in, this Agreement, the Indenture, Borrower of the Loan Agreement, the Reimbursement Agreement as amended by this Amendment, are within its corporate power and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date for: (i) the execution, delivery and performance of the Closing Documents that have been executed in connection with the transactions contemplated hereby and by the Offering Documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(c) The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been duly executed authorized by all necessary corporate action, (d) this Amendment and delivered the Loan Agreement, as amended by it and constitute its this Amendment, are legal, valid valid, and binding obligations, obligations of the Borrower enforceable against it the Borrower in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws, or equitable principles relating to or limiting creditors’ rights generally.
and (de) The the execution and delivery by the Borrower of this Amendment and the performance by the Borrower of the Closing Documents that have been executed in connection with Loan Agreement, as amended by this Amendment, do not require the consummation consent of any Person and do not contravene the terms of the transactions contemplated hereby and by the Offering DocumentsBorrower’s certificate of incorporation or bylaws or any indenture, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions ofagreement, or constitute a default under, or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, agreement or instrument undertaking to which the Borrower is a party or by which it the Borrower or any of its properties property is bound other than those provided for in or contemplated by the Indenturebound.
(e) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the Offering Documents, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of the Borrower, threatened against or affecting it wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on the financial condition or solvency of the Borrower or the ability of the Borrower to perform its obligations under the Closing Documents.
(g) The Borrower makes no representation as to information in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion therein.
(h) The Borrower has taken no action, and has not omitted to take any action, which action or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income to the holders thereof for federal income tax purposes.
(i) The Borrower will cooperate with the Remarketing Agent in obtaining the qualification of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that the Borrower shall not be required to incur any expense, consent to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subject.
Appears in 1 contract
Samples: Loan and Security Agreement (American Builders & Contractors Supply Co Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower makes the following representations, warranties and covenants, all of which, together with the other representations and warranties agreements of the Borrower set forth contained in the Bond Purchase this Financing Agreement, dated June , 2019 (are relied upon by the "Bond Purchase County and the Trustee and serve as a basis for the undertakings of the County and the Trustee contained in this Financing Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees with, the Remarketing Agent as follows:
(a) It The Borrower is a limited partnership duly organized, validly existing and in good standing under the laws of the State and duly qualified to conduct its business under the laws of the State and in every other state in which the nature of its business requires such qualification, has the full legal right, power and authority to take all actions required or permitted enter into this Financing Agreement and the other Loan Documents to be taken by which it underis a party, and to perform carry out and observe the covenants and agreements consummate all transactions on its part contained incontemplated hereby and by the other Loan Documents, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, by proper partnership action has duly taken all action necessary to be taken by it prior to such date for: (i) authorized the execution, delivery and performance by it of this Financing Agreement and the other Loan Documents to which it is a party. All general partners, if any, of the Closing Documents that have been executed Borrower are duly incorporated, organized and in connection with good standing under the transactions contemplated hereby laws of their respective states of organization and by are duly qualified to transact business in the Offering Documents; State.
(b) The Borrower has the legal right, power and authority to (i) own its properties and assets, including, but not limited to, the Project, (ii) to carry on its business as now being conducted and the carrying out, giving effect to, consummation Borrower contemplates it to be conducted under the Loan Documents and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made otherwise with respect to compliance with the securities or Blue Sky laws of Project, and (iii) execute and deliver, carry out its obligations under, and close the various states of transactions provided for in, the United StatesLoan Documents to which it is a party.
(c) The Closing Documents that have been executed in connection with the consummation officers or managers of the transactions contemplated hereby general partners of the Borrower executing this Financing Agreement and by the Offering other Loan Documents are duly and properly in office and fully authorized to execute the same. This Financing Agreement and the other Loan Documents have been duly authorized, executed and delivered by the Borrower.
(d) This Financing Agreement and the other Loan Documents to which it and is a party constitute its the legal, valid and binding obligations, agreements of the Borrower enforceable against it the Borrower in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or similar laws, or equitable principles relating to or limiting other laws affecting the enforcement of creditors’ rights generally, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity and by public policy.
(de) No consent or approval of any trustee or holder of any indebtedness of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery by the Borrower of this Financing Agreement or the other Loan Documents to which the Borrower is a party or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, except as have been obtained or made and as are in full force and effect.
(f) The execution and delivery of this Financing Agreement and the Closing other Loan Documents that have been executed in connection with to which the consummation of Borrower is a party, the transactions contemplated hereby and by the Offering Documents, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and the fulfillment of or compliance with the terms and conditions hereof and thereof, will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, conflict with or constitute a violation or breach of or default under(with due notice or the passage of time or both) under (i) the organizational or other governing documents of the Borrower, (ii) any applicable law or administrative rule or regulation, or result in the creation any applicable court or imposition of administrative decree or order, (iii) any mortgage, liendeed of trust, charge loan agreement, lease, contract or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, other agreement or instrument to which the Borrower is a party or by which it or its properties or assets are otherwise subject or bound, or (iv) except as provided in the Loan Documents, result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of its properties is bound other than those provided for in the property or contemplated by the Indenture.
(e) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower assets of the Closing Documents Borrower, which conflict, violation, breach, default, lien, charge or encumbrance might have consequences that have been executed in connection with would materially and adversely affect the consummation of the transactions contemplated hereby and by this Financing Agreement or the Offering Documents have been obtainedLoan Documents, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities financial condition, assets, properties or Blue Sky laws operations of the various states of the United StatesBorrower.
(fg) Other than as described in the Offering Documents, there There is no action, suit, proceeding, inquiry or investigation investigation, before or by any courtcourt or federal, public board state, municipal or body other governmental authority, pending or, to the knowledge of the Borrower, or threatened against or affecting it wherein an unfavorable decisionthe Borrower or the assets, ruling properties or finding is likely operations of the Borrower which, if determined adversely to the Borrower or its interests, would have a material adverse effect on upon the consummation of the transactions contemplated by, or the validity of, this Financing Agreement or the other Loan Documents or upon the financial condition condition, assets, properties or solvency operations of the Borrower, and the Borrower is not in default (and no event has occurred and is continuing which with the giving of notice or the passage of time or both could constitute a default) with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental authority, which default might have consequences that would materially and adversely affect the consummation of the transactions contemplated by this Financing Agreement or the other Loan Documents or the financial condition, assets, properties or operations of the Borrower. The Borrower enjoys the peaceful and undisturbed possession of all of the premises upon which it is operating its facilities.
(h) The Project and the operation of the Project (in the manner contemplated by the Loan Documents) will conform with the requirements of the Act as well as all applicable zoning, planning, building and environmental laws, ordinances and regulations of governmental authorities having jurisdiction over the Project.
(i) All tax returns (federal, state and local) required to be filed by or on behalf of the Borrower have been filed, and all taxes shown thereon to be due, including interest and penalties, except such, if any, as are being actively contested by the Borrower in good faith, have been paid or adequate reserves have been made for the payment thereof which reserves, if any, are reflected in the audited financial statements described therein.
(j) The Borrower is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party which default would materially adversely affect the transactions contemplated by the Loan Documents or the operations of the Borrower or the enforceability of the Loan Documents to which the Borrower is a party or the ability of the Borrower to perform its all obligations under the Closing Documentsthereunder.
(gk) The Borrower makes no representation as agrees to information pay all costs of maintenance and repair, all Taxes and assessments, insurance premiums (including public liability insurance and insurance against damage to or destruction of the Project) concerning or in any way related to the Project, or any part thereof, and any expenses or renewals thereof, and any other governmental charges and impositions whatsoever, foreseen or unforeseen, and all utility and other charges and assessments concerning or in any way related to the Project.
(l) All of the partnership interests in the Offering Documents Borrower are validly issued and are fully registered, if required, with the applicable governmental authorities and/or agencies, and, except as set forth in the Borrower’s partnership agreement, there are no outstanding options or rights to purchase or acquire those interests. Nothing in this Financing Agreement shall prevent the Borrower from issuing additional partnership interests if such units are issued in accordance with all applicable securities laws.
(m) The representations and warranties of the Borrower contained in the Regulatory Agreement are true and accurate.
(n) The information, statements or reports furnished in writing to the County or the Bondholder Representative by the Borrower in connection with this Financing Agreement and the other Loan Documents, or the consummation of the transactions contemplated hereby, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; and the representations and warranties of the Borrower and the statements, information and descriptions contained in the Borrower’s closing certificates relating to the Credit Provider Bonds and provided by the Credit Provider for inclusion Loan, as of the Closing Date, are true and correct in all material respects, do not contain any untrue statement of a material fact, and do not omit to state a material fact necessary to make the representations, warranties, statements, information and descriptions contained therein, in the light of the circumstances under which they were made, not misleading; and any estimates or the assumptions contained in any certificate of the Borrower delivered as of the Closing Date are reasonable.
(ho) All financial statements and information heretofore delivered to the County or the Bondholder Representative by Xxxxxxxx, including without limitation, information relating to the financial condition of Borrower, the Project, its partners and/or any guarantor, fairly and accurately present the financial position thereof and have been prepared (except where specifically noted therein) in accordance with generally accepted accounting principles consistently applied. Since the date of such statements, there has been no material adverse change in the financial condition or results of operations of the Borrower or the other subjects of such statements.
(p) The Borrower has taken no actionshall pay and indemnify the County and the Trustee against all reasonable fees, costs and has not omitted charges, including reasonable fees and expenses of attorneys, accountants, consultants and other experts, incurred in good faith (and with respect to take any actionthe Trustee, which action without negligence) and arising out of or omission to take action would in any way affect connection with the Bond Documents or impair the excludability Bonds. These obligations and those in Section 6.1 shall remain valid and in effect notwithstanding repayment of interest on the Loan hereunder or the Bonds from gross income to or termination of this Financing Agreement or the holders thereof for federal income tax purposesIndenture.
(iq) The Borrower will cooperate acknowledges, represents and warrants that it understands the nature and structure of the transactions relating to the financing of the Project; that it is familiar with the Remarketing Agent in obtaining the qualification provisions of all of the Bonds for offering documents and sale under the laws of instruments relating to such jurisdictions as the Remarketing Agent shall designate; provided that financing to which the Borrower shall not be required to incur any expense, consent to service is a party or of process in any jurisdiction or qualify to do business in any jurisdiction where which it is a beneficiary, including the Indenture; that it understands the risks inherent in such transactions; and that it has not now so subjectrelied on the County for any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by the Bond Documents or the Loan Documents, or otherwise relied on the County for any advice.
(r) All material certificates, approvals, permits and authorizations of applicable local governmental agencies, and agencies of the State and the federal government have been or will be obtained with respect to the acquisition, construction and installation of the Project and the Project will be acquired, constructed and installed and the Project will be operated pursuant to and in accordance with such certificates, approvals, permits and authorizations.
Appears in 1 contract
Samples: Financing Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower makes the following representations, warranties and covenants, all of which, together with the other representations and warranties agreements of the Borrower set forth contained in the Bond Purchase this Project Loan Agreement, dated June , 2019 (are relied upon by the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In additionGovernmental Lender, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees withFunding Lender, the Remarketing Servicer and the Fiscal Agent and serve as followsa basis for the undertakings of the Governmental Lender, the Servicer and the Fiscal Agent contained in this Project Loan Agreement:
(a) It The Borrower is a limited partnership duly organized, validly existing and in good standing under the laws of the state in which it has been organized and is duly qualified to conduct its business under the laws of the State and in every other state in which the nature of its business requires such qualification, has full legal right, power and authority to take all actions required or permitted to be taken by it underenter into this Project Loan Agreement and the other Financing Documents, and to perform carry out and observe consummate all transactions contemplated hereby and by the covenants other Financing Documents, and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, by proper action has duly taken all action necessary to be taken by it prior to such date for: (i) authorized the execution, delivery and performance of this Project Loan Agreement and the Closing Documents that have been executed other Financing Documents. All corporate general partners, if any, of the Borrower are duly organized and in connection with good standing under the transactions contemplated hereby laws of their respective states of organization and are duly qualified to transact business in the State as either domestic or foreign corporations, as applicable. All 4814-8693-5008.3 partnership general partners, if any, are duly formed and in good standing under the laws of their respective states of formation and, to the extent required by the Offering Documents; laws of the State, are duly qualified to transact business in the State as either domestic or foreign partnerships or limited liability companies, as applicable.
(b) The Borrower has the legal right, power and authority to (i) own its properties and assets, including, but not limited to, the Project, (ii) to carry on its business as now being conducted and the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made Borrower contemplates it to be conducted with respect to compliance with the securities or Blue Sky laws of Project and (iii) execute and deliver, carry out its obligations under, and close the various states of transactions provided for in, the United StatesFinancing Documents to which it is a party.
(c) The Closing Documents that have been executed in connection with the consummation Each of the transactions contemplated hereby and by Financing Documents to which the Offering Documents have Borrower is a party has been duly authorized, executed and delivered by it the Borrower and, assuming due authorization, execution and constitute its delivery by the other parties thereto, constitutes the legal, valid and binding obligationsobligation of the Borrower, enforceable against it the Borrower in accordance with their its respective terms, except as enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or and other similar laws, or equitable laws affecting the rights of creditors generally and general principles relating to or limiting creditors’ rights generallyof equity.
(d) The No authorization, consent, approval, order, registration, declaration or withholding of objection on the part of, or filing of or with any governmental authority, other than those already obtained or those necessary to be obtained during the course of construction of the Project, is required for the due execution and delivery or approval, as the case may be, by the Borrower of, and the performance by the Borrower of its obligations under, the Financing Documents.
(e) None of the execution and delivery of the Closing Financing Documents that have been executed in connection with to which the Borrower is a party, the consummation of the transactions contemplated hereby and by provided for in the Offering Financing Documents, or the Borrower’s fulfillment of or compliance with the terms, terms and conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and Financing Documents (i) violates or will not violate any law, regulationrule or regulation of any governmental agency or body having jurisdiction over the Borrower, or any of its activities or properties, or any judgment, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, agreement or instrument to which the Borrower is a party or by which it subject, or any of its properties is bound other than those provided for in or contemplated by the Indenture.
(e) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency organizational or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the Offering Documents, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge governing documents of the Borrower, threatened against or affecting it wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on the financial condition or solvency of the Borrower or the ability of the Borrower to perform its obligations under the Closing Documents.
(g) The Borrower makes no representation as to information in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion therein.
(h) The Borrower has taken no action, and has not omitted to take any action, which action or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income to the holders thereof for federal income tax purposes.
(i) The Borrower will cooperate with the Remarketing Agent in obtaining the qualification of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that the Borrower shall not be required to incur any expense, consent to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subject.,
Appears in 1 contract
Samples: Project Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The representations and warranties of the Borrower set forth in the Bond Purchase Agreementrepresents, dated June , 2019 (the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees with, the Remarketing Agent as follows:
(a) It The Borrower is a limited liability limited partnership duly created under the laws of the State of Minnesota, is in good standing and duly authorized to conduct its business in the State of Florida and all other states where its activities require such authorization, has power to enter into the authority to take all actions required or permitted to be taken by it under, Borrower Documents and to perform and observe use the covenants and agreements on its part contained in, Project for the purpose set forth in this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, Regulatory Agreement and by proper partnership action has authorized the "Closing execution and delivery of the Borrower Documents").
(b) It has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date for: (i) the execution, delivery and performance of the Closing Documents that have been executed in connection with the transactions contemplated hereby and by the Offering Documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(c) The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been duly executed and delivered by it and constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws, or equitable principles relating to or limiting creditors’ rights generally.
(d) The execution and delivery of the Closing Documents that have been executed in connection with Borrower Documents, the consummation of the transactions contemplated hereby and by the Offering Documents, compliance with the terms, conditions or provisions thereofthereby, and consummation the fulfillment of the transactions herein terms and therein contemplated conditions thereof do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body conflict with or result in a breach of any of the termsterms or conditions of the Limited Partnership Agreement and other organizational documents, conditions any restriction or provisions ofany agreement or instrument to which the Borrower is now a party or by which it is bound or to which any property of the Borrower is subject, or and do not and will not constitute a default underunder any of the foregoing or a violation of any order, decree, statute, rule or regulation of any court or of any state or federal regulatory body having jurisdiction over the Borrower or its properties, including the Project, and do not and will not result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties property or assets of the Borrower pursuant to, contrary to the terms of any mortgage, resolution, instrument or agreement or instrument to which the Borrower is a party or by which it or any is bound.
(c) The design and plan of its properties is bound other than those provided for in or the Project comprise a housing development as contemplated by the Indenture.Act, specifically a development designed to be affordable by persons and families with adjusted gross income not in excess of the limits set forth in the Act and the Regulatory Agreement; and subject to the other provisions of this Agreement, it is presently intended and reasonably expected that the equipment purchased from the proceeds of the Note will be permanently located and exclusively used on the Land and that the Borrower will operate the Project buildings on the Land throughout the term of this Agreement in the normal conduct of the Borrower’s business;
(d) The Note is issued within the exemption provided under Section 142(d) of the Code with respect to qualified residential rental projects; and “substantially all” of the proceeds of the Note will be used for expenditures chargeable to the capital account of the Project;
(e) There is public access to the Project; and, as of the date hereof, and to the Borrower’s knowledge, the use of the Project as designed and proposed to be operated complies, in all material respects, with all presently applicable development, pollution control, water conservation and other laws, regulations, rules and ordinances of the federal government and the State and the respective agencies thereof and the political subdivisions in which the Project is located. All authorizationsnecessary and material approvals of and licenses, permits, consents and approvals offranchises from federal, notices tostate, registrations county, municipal or filings withother governmental authorities having jurisdiction over the Project have been, or actions in respect ofwill be, any governmental bodyobtained to acquire, agency or other instrumentality or court required in connection with construct, install, and operate the execution, delivery Project and performance by the Borrower of has obtained all necessary approvals to enter into, execute and perform its obligations under the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United StatesBorrower Documents.
(f) Other than as described The proceeds of the Note and the Senior Loans, together with any other funds to be contributed to the Project by the Borrower, loaned to the Borrower or otherwise in accordance with this Agreement and the Senior Loan Documents, will be sufficient to pay the cost of acquiring and renovating the Project, and all costs and expenses incidental thereto, and the proceeds of the Note will be used only for the purposes contemplated hereby and allowable under the Act.
(g) The Borrower is not in the Offering Documentstrade or business of selling properties such as the Project and is acquiring the Project for investment purposes only or otherwise for use by the Borrower in its trade or business, there is and therefore the Borrower has no actionintention now or in the foreseeable future to voluntarily sell, suitsurrender or otherwise transfer, proceedingin whole or part, inquiry its interest in the Project, except as permitted by Section 6.08 hereof.
(h) There are no actions, suits, or investigation before or by any court, public board or body proceedings pending or, to the knowledge of the Borrower, threatened against or affecting it wherein an unfavorable decisionthe Borrower or any property of the Borrower in any court or before any federal, ruling state, municipal or finding is likely other governmental agency, which, if decided adversely to the Borrower would have a material adverse effect on the financial condition or solvency of upon the Borrower or upon the ability business or properties of the Borrower; and the Borrower is not in default with respect to perform its obligations under the Closing Documents.
(g) The Borrower makes no representation as to information in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion therein.
(h) The Borrower has taken no action, and has not omitted to take any action, which action order of any court or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income to the holders thereof for federal income tax purposesgovernmental agency.
(i) The Borrower will cooperate with is not in default in the Remarketing Agent in obtaining the qualification payment of the Bonds principal of or interest on any indebtedness for offering borrowed money nor in default under any instrument or agreement under and sale under subject to which any indebtedness for borrowed money has been issued.
(j) The Borrower has filed all federal and state income tax returns which, to the laws knowledge of such jurisdictions as the Remarketing Agent shall designate; provided that officers of the Borrower, are required to be filed and has paid all taxes shown on said returns and all assessments and governmental charges received by the Borrower shall not be required to incur the extent that they have become due.
(k) To the Borrower’s knowledge, no public official of the Issuer has a conflict of interest arising from this Agreement nor will any expense, consent to service of process in any jurisdiction public official either directly or qualify to do business in any jurisdiction where it is not now so subjectindirectly benefit financially from this Agreement.
Appears in 1 contract
Samples: Subordinate Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The representations Borrower represents and warranties warrants, as of the Borrower set forth in the Bond Purchase Agreement, dated June , 2019 (the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution date hereof, represents and warrants tocovenants, for the benefit of the Lender and covenants and agrees with, the Remarketing Agent Issuer as follows:
(a) It The Borrower is duly organized and in good standing under the laws of the State of California, authorized to purchase and hold real and personal property and finance or refinance the same, and has the full legal right, power and authority to take all actions required or permitted to be taken by it under, enter into the Loan Documents and to perform carry out and observe consummate all transactions contemplated hereby and by the covenants other Loan Documents and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, by proper corporate action has duly taken all action necessary to be taken by it prior to such date for: (i) authorized the execution, delivery and performance of the Closing Loan Documents. The Borrower is duly licensed to operate and maintain its existing facilities and has all necessary power and authority to conduct the business now being conducted by it and as contemplated by this Loan Agreement
(b) The Borrower Documents that have been duly authorized, executed in connection with the transactions contemplated hereby and delivered by the Offering Documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United StatesBorrower.
(c) The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby Assuming due execution and delivery by the Offering other parties, this Loan Agreement and the other Borrower Documents have been duly executed and delivered by it and constitute its the legal, valid and binding obligations, agreements of the Borrower enforceable against it the Borrower by the Issuer or the Lender, as appropriate, in accordance with their respective terms, ; except in each case as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or similar laws, or equitable principles relating to or limiting other laws affecting the enforcement of creditors’ rights generally, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity and by public policy and by commercial reasonableness.
(d) The execution and delivery of the Closing Loan Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering DocumentsBorrower, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated and the fulfillment of or compliance with the terms and conditions hereof and thereof by the Borrower, do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, conflict with or constitute a violation or breach of or default under(with due notice or the passage of time or both) under the articles of incorporation and bylaws of the Borrower, or result in with respect to the creation Borrower, any applicable law or imposition of administrative rule or regulation, or any applicable court or administrative decree or order, or any material indenture, mortgage, liendeed of trust, charge loan agreement, lease, contract or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, other material agreement or instrument to which the Borrower is a party or by which it or its properties are otherwise subject or bound, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of its properties is bound the property or assets of the Borrower, other than those provided for in Permitted Encumbrances, which conflict, violation, breach, default, lien, charge or contemplated by the Indenture.
(e) All authorizations, consents encumbrance may materially and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of the Closing Documents that have been executed in connection with adversely affect the consummation of the transactions contemplated hereby and by the Offering Documents Loan Documents, or the financial condition, operations or business of the Borrower.
(e) As of the date hereof, no consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity to the Borrower, and with respect to the Borrower, no consent, permission, authorization, order or license of, or filing or registration with, any Governmental Authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Loan Documents, or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, except as have been obtained, given obtained or taken made and as are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the Offering Documents, there There is no action, suit, proceeding, inquiry or investigation investigation, before or by any courtcourt or federal, public board state, municipal or body pending orother Governmental Authority, pending, or to the knowledge of the Borrower, threatened in writing, against or affecting it wherein an unfavorable decisionthe Borrower or the assets, ruling properties or finding is likely to have a material adverse effect on the financial condition or solvency operations of the Borrower Borrower:
(i) to restrain or enjoin the issuance or delivery of any of the Loan Documents or the payment of Payments hereunder;
(ii) in any way contesting or adversely affecting the authority for or the validity of the Loan Documents;
(iii) in any way contesting the corporate existence or powers of the Borrower;
(iv) which, if determined adversely to it, would materially adversely affect the consummation of the transactions contemplated by the Loan Documents or the ability of the Borrower to perform its material obligations hereunder or thereunder; or could reasonably be expected to have a Material Adverse Effect on the financial conditions, the operations or business of the Borrower; or
(v) contesting the Borrower’s status as an organization described in Section 501(c)(3) of the Code or which would subject any income of the Borrower to federal income taxation to such extent as would result in loss of the exclusion from gross income for federal income tax purposes of interest on any portion of the Tax-Exempt Issuer Loan Obligations under Section 103 of the Closing DocumentsCode.
(g) The As of the date hereof, no written information, exhibit or report furnished to the Issuer or the Lender by the Borrower makes no representation in connection with the negotiation of the Loan Documents or otherwise in connection with the transactions contemplated hereby and thereby, contains any untrue statement of a material fact regarding the Borrower, the Property or the Borrower’s business, or omits to state a material fact regarding the Borrower, the Property or the Borrower’s business necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. All projections, valuations or pro forma financial statements provided to the Issuer or the Lender by Borrower present Borrower’s good faith opinion as to information in the Offering Documents relating to the Credit Provider such projections, valuations and provided by the Credit Provider for inclusion thereinpro forma condition and results.
(h) The Borrower has taken no actionheretofore furnished to the Issuer and the Lender the audited financial statements of the Borrower for its fiscal years ended June 30, 2014 and June 30, 2015, and has not omitted the related statement of revenues, expenditures, transfer and changes in net assets and changes in financial position for the years then ended and information related to take any actionthe Project. The information relating to the Project is complete and accurate and those financial statements present fairly, which action or omission to take action would in any way affect or impair all material respects, the excludability financial condition of interest the Borrower on the Bonds from gross income dates thereof, and the activities and cash flows for the periods then ended were prepared in accordance with GAAP. Since June 30, 2015, there has been no Material Adverse Change in the assets, operations or financial condition of the Borrower, other than as disclosed in writing to the holders thereof for federal income tax purposesIssuer and the Lender.
(i) As of the Closing Date, the Borrower has good and marketable fee title to the Property free and clear from all encumbrances other than Permitted Encumbrances. The Borrower will cooperate enjoys the peaceable and undisturbed possession of all real and personal property which is material to its operation.
(j) The Borrower is not in default (and no event has occurred and is continuing which with the Remarketing Agent in obtaining giving of notice or the qualification passage of time or both could constitute a default) (1) under the Borrower Documents, or (2) with respect to any order or decree of any court binding against the Borrower or any order, regulation or demand of any federal, state, municipal or other Governmental Authority binding against the Borrower, which default could reasonably be expected to have a Material Adverse Effect on the consummation of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that transactions contemplated by the Borrower shall Documents, or the financial condition, operations or business of the Borrower.
(k) All material certificates, approvals, permits and authorizations of applicable local governmental agencies, and agencies of the State and the federal government were obtained, or will be obtained during the course of construction of the Improvements, with respect to the construction and installation of the Facilities and operation of the Facilities, and the Facilities have been or will be constructed, installed operated pursuant to and in accordance with such certificates, approvals, permits and authorizations.
(l) The Borrower acknowledges, represents and warrants that, except for the express representations and warranties of the Issuer set forth herein, it has not relied on the Issuer or Lender for any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by the Borrower Documents or otherwise relied on the Issuer or Lender for any advice. The Borrower acknowledges that it has been advised by, or has had the opportunity to be required advised by, its own financial advisors in connection with the financing and refinancing of the Project.
(m) No portion of the Tax-Exempt Financed Property includes any property used or to incur be used for sectarian instruction or study, as a place for devotional activities or religious worship, or primarily in connection with any expensepart of the program of a school or department of divinity for any religious denomination.
(n) The Borrower is an organization described in Section 501(c)(3) of the Code, consent does not constitute a private foundation under Section 509(a) of the Code, and the income of the Borrower is exempt from federal taxation under Section 501(a) of the Code. The Borrower has received a determination from the Internal Revenue Service to service the foregoing effect, and none of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subjectthe bases for such determination have changed since the date thereof.
Appears in 1 contract
Samples: Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower makes the following representations, warranties and covenants, all of which, together with the other representations and warranties agreements of the Borrower set forth contained in the Bond Purchase this Project Loan Agreement, dated June , 2019 (are relied upon by the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In additionGovernmental Lender, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees withFunding Lender, the Remarketing Servicer and the Fiscal Agent and serve as followsa basis for the undertakings of the Governmental Lender, the Servicer and the Fiscal Agent contained in this Project Loan Agreement:
(a) It The Borrower is a limited partnership duly organized, validly existing and in good standing under the laws of the state in which it has been organized and is duly qualified to conduct its business under the laws of the State and in every other state in which the nature of its business requires such qualification, has full legal right, power and authority to take all actions required or permitted to be taken by it underenter into this Project Loan Agreement and the other Financing Documents, and to perform carry out and observe consummate all transactions contemplated hereby and by the covenants other Financing Documents, and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, by proper action has duly taken all action necessary to be taken by it prior to such date for: (i) authorized the execution, delivery and performance of this Project Loan Agreement and the Closing Documents that have been executed other Financing Documents. All corporate general partners, if any, of the Borrower are duly organized and in connection with good standing under the transactions contemplated hereby laws of their respective states of organization and are duly qualified to transact business in the State as either domestic or foreign corporations, as applicable. All partnership general partners, if any, are duly formed and in good standing under the laws of their respective states of formation and, to the extent required by the Offering Documents; laws of the State, are duly qualified to transact business in the State as either domestic or foreign partnerships or limited liability companies, as applicable.
(b) The Borrower has the legal right, power and authority to (i) own its properties and assets, including, but not limited to, the Project, (ii) to carry on its business as now being conducted and the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made Borrower contemplates it to be conducted with respect to compliance with the securities or Blue Sky laws of Project and (iii) execute and deliver, carry out its obligations under, and close the various states of transactions provided for in, the United StatesFinancing Documents to which it is a party.
(c) The Closing Documents that have been executed in connection with the consummation Each of the transactions contemplated hereby and by Financing Documents to which the Offering Documents have Borrower is a party has been duly authorized, executed and delivered by it the Borrower and, assuming due authorization, execution and constitute its delivery by the other parties thereto, constitutes the legal, valid and binding obligationsobligation of the Borrower, enforceable against it the Borrower in accordance with their its respective terms, except as enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or and other similar laws, or equitable laws affecting the rights of creditors generally and general principles relating to or limiting creditors’ rights generallyof equity.
(d) The No authorization, consent, approval, order, registration, declaration or withholding of objection on the part of, or filing of or with any governmental authority, other than those already obtained or those necessary to be obtained during the course of construction of the Project, is required for the due execution and delivery or approval, as the case may be, by the Borrower of, and the performance by the Borrower of its obligations under, the Financing Documents.
(e) None of the execution and delivery of the Closing Financing Documents that have been executed in connection with to which the Borrower is a party, the consummation of the transactions contemplated hereby and by provided for in the Offering Financing Documents, or the Borrower’s fulfillment of or compliance with the terms, terms and conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and Financing Documents (i) violates or will not violate any law, regulationrule or regulation of any governmental agency or body having jurisdiction over the Borrower, or any of its activities or properties, or any judgment, order, writ, injunction or decree to which the Borrower is subject, or any of the organizational or other governing documents of the Borrower, (ii) conflicts or will conflict with any court agreement, instrument or governmental body license to which the Borrower is now a party or by which it or any of its properties or assets is bound or results or will result in a breach of any of the terms, conditions or provisions of, or constitutes or will constitute a default (with due notice or the passage of time or both) under, any such agreement, instrument or license, (iii) contravenes or will contravene any such law, rule or regulation or any such judgment, order, writ, injunction or decree, or (iv) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties property or assets of the Borrower pursuant toBorrower, except for any mortgagelien, resolution, agreement charge or instrument to which encumbrance permitted under the Borrower is a party or by which it or any of its properties is bound other than those provided for in or contemplated by the Indenture.
(e) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower terms of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
Financing Documents. (f) Other than as described in the Offering Documents, there There is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of the Borrower’s knowledge, threatened against or affecting it wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on the financial condition or solvency of the Borrower or any of its properties (including, without limitation, the ability Project), which, if adversely determined, would (i) impair the right of the Borrower to perform carry on its obligations under the Closing Documents.
(g) The Borrower makes no representation business substantially as to information in the Offering Documents relating to the Credit Provider now conducted and provided as contemplated by the Credit Provider Financing Documents, (ii) adversely affect the financial condition of the Borrower, (iii) prohibit, restrain or enjoin the making of the Funding Loan or the Project Loan or the execution and delivery of any of the Financing Documents, (iv) adversely affect the validity or enforceability of any of the Financing Documents, or (v) adversely affect the exclusion from gross income for inclusion therein.
(h) The Borrower has taken no action, and has not omitted to take any action, which action or omission to take action would in any way affect or impair the excludability federal income tax purposes of interest on the Bonds from gross income to the holders thereof for federal income tax purposesGovernmental Note.
(i) The Borrower will cooperate with the Remarketing Agent in obtaining the qualification of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that the Borrower shall not be required to incur any expense, consent to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subject.
Appears in 1 contract
Samples: Project Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower makes the following representations, warranties and covenants, all of which, together with the other representations and warranties agreements of the Borrower set forth contained in the Bond Purchase this Financing Agreement, dated June , 2019 (are relied upon by the "Bond Purchase County and the Trustee and serve as a basis for the undertakings of the County and the Trustee contained in this Financing Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees with, the Remarketing Agent as follows:
(a) It The Borrower is a limited partnership duly organized, validly existing and in good standing under the laws of the State and duly qualified to conduct its business under the laws of the State and in every other state in which the nature of its business requires such qualification, has the full legal right, power and authority to take all actions required or permitted enter into this Financing Agreement and the other Loan Documents to be taken by which it underis a party, and to perform carry out and observe the covenants and agreements consummate all transactions on its part contained incontemplated hereby and by the other Loan Documents, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, by proper partnership action has duly taken all action necessary to be taken by it prior to such date for: (i) authorized the execution, delivery and performance by it of this Financing Agreement and the other Loan Documents to which it is a party. All general partners, if any, of the Closing Documents that have been executed Borrower are duly incorporated, organized and in connection with good standing under the transactions contemplated hereby laws of their respective states of organization and by are duly qualified to transact business in the Offering Documents; State.
(b) The Borrower has the legal right, power and authority to (i) own its properties and assets, including, but not limited to, the Project, (ii) to carry on its business as now being conducted and the carrying out, giving effect to, consummation Borrower contemplates it to be conducted under the Loan Documents and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made otherwise with respect to compliance with the securities or Blue Sky laws of Project, and (iii) execute and deliver, carry out its obligations under, and close the various states of transactions provided for in, the United StatesLoan Documents to which it is a party.
(c) The Closing Documents that have been executed in connection with the consummation officers or managers of the transactions contemplated hereby general partners of the Borrower executing this Financing Agreement and by the Offering other Loan Documents are duly and properly in office and fully authorized to execute the same. This Financing Agreement and the other Loan Documents have been duly authorized, executed and delivered by the Borrower.
(d) This Financing Agreement and the other Loan Documents to which it and is a party constitute its the legal, valid and binding obligations, agreements of the Borrower enforceable against it the Borrower in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or similar laws, or equitable principles relating to or limiting other laws affecting the enforcement of creditors’ rights generally, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity and by public policy.
(de) No consent or approval of any trustee or holder of any indebtedness of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery by the Borrower of this Financing Agreement or the other Loan Documents to which the Borrower is a party or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, except as have been obtained or made and as are in full force and effect.
(f) The execution and delivery of this Financing Agreement and the Closing other Loan Documents that have been executed in connection with to which the consummation of Borrower is a party, the transactions contemplated hereby and by the Offering Documents, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and the fulfillment of or compliance with the terms and conditions hereof and thereof, will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, conflict with or constitute a violation or breach of or default under(with due notice or the passage of time or both) under (i) the organizational or other governing documents of the Borrower, (ii) any applicable law or administrative rule or regulation, or result in the creation any applicable court or imposition of administrative decree or order, (iii) any mortgage, liendeed of trust, charge loan agreement, lease, contract or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, other agreement or instrument to which the Borrower is a party or by which it or its properties or assets are otherwise subject or bound, or (iv) except as provided in the Loan Documents, result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of its properties is bound other than those provided for in the property or contemplated by the Indenture.
(e) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower assets of the Closing Documents Borrower, which conflict, violation, breach, default, lien, charge or encumbrance might have consequences that have been executed in connection with would materially and adversely affect the consummation of the transactions contemplated hereby and by this Financing Agreement or the Offering Documents have been obtainedLoan Documents, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities financial condition, assets, properties or Blue Sky laws operations of the various states of the United StatesBorrower.
(fg) Other than as described in the Offering Documents, there There is no action, suit, proceeding, inquiry or investigation investigation, before or by any courtcourt or federal, public board state, municipal or body other governmental authority, pending or, to the knowledge of the Borrower, or threatened against or affecting it wherein an unfavorable decisionthe Borrower or the assets, ruling properties or finding is likely operations of the Borrower which, if determined adversely to the Borrower or its interests, would have a material adverse effect on upon the consummation of the transactions contemplated by, or the validity of, this Financing Agreement or the other Loan Documents or upon the financial condition condition, assets, properties or solvency operations of the Borrower, and the Borrower is not in default (and no event has occurred and is continuing which with the giving of notice or the passage of time or both could constitute a default) with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental authority, which default might have consequences that would materially and adversely affect the consummation of the transactions contemplated by this Financing Agreement or the other Loan Documents or the financial condition, assets, properties or operations of the Borrower. The Borrower enjoys the peaceful and undisturbed possession of all of the premises upon which it is operating its facilities.
(h) The Project and the operation of the Project (in the manner contemplated by the Loan Documents) will conform with the requirements of the Act as well as all applicable zoning, planning, building and environmental laws, ordinances and regulations of governmental authorities having jurisdiction over the Project.
(i) All tax returns (federal, state and local) required to be filed by or on behalf of the Borrower have been filed, and all taxes shown thereon to be due, including interest and penalties, except such, if any, as are being actively contested by the Borrower in good faith, have been paid or adequate reserves have been made for the payment thereof which reserves, if any, are reflected in the audited financial statements described therein.
(j) The Borrower is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party which default would materially adversely affect the transactions contemplated by the Loan Documents or the operations of the Borrower or the enforceability of the Loan Documents to which the Borrower is a party or the ability of the Borrower to perform its all obligations under the Closing Documentsthereunder.
(gk) The Borrower makes no representation as agrees to information pay all costs of maintenance and repair, all Taxes and assessments, insurance premiums (including public liability insurance and insurance against damage to or destruction of the Project) concerning or in any way related to the Project, or any part thereof, and any expenses or renewals thereof, and any other governmental charges and impositions whatsoever, foreseen or unforeseen, and all utility and other charges and assessments concerning or in any way related to the Project.
(l) All of the partnership interests in the Offering Borrower are validly issued and are fully registered, if required, with the applicable governmental authorities and/or agencies, and, except as set forth in the Borrower’s partnership agreement, there are no outstanding options or rights to purchase or acquire those interests. Nothing in this Financing Agreement shall prevent the Borrower from issuing additional partnership interests if such units are issued in accordance with all applicable securities laws.
(m) The representations and warranties of the Borrower contained in the Regulatory Agreement are true and accurate.
(n) The information, statements or reports furnished in writing to the County or the Bondowner Representative by the Borrower in connection with this Financing Agreement and the other Loan Documents or the consummation of the transactions contemplated hereby, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; and the representations and warranties of the Borrower and the statements, information and descriptions contained in the Borrower’s closing certificates relating to the Credit Provider Bonds and provided by the Credit Provider for inclusion Loan as of the Closing Date, are true and correct in all material respects, do not contain any untrue statement of a material fact, and do not omit to state a material fact necessary to make the representations, warranties, statements, information and descriptions contained therein, in the light of the circumstances under which they were made, not misleading; and any estimates or the assumptions contained in any certificate of the Borrower delivered as of the Closing Date are reasonable.
(ho) All financial statements and information heretofore delivered to the County or the Bondowner Representative by Borrower, including without limitation, information relating to the financial condition of Borrower, the Project, its partners and/or any guarantor, fairly and accurately present the financial position thereof and have been prepared (except where specifically noted therein) in accordance with generally accepted accounting principles consistently applied. Since the date of such statements, there has been no material adverse change in the financial condition or results of operations of the Borrower or the other subjects of such statements.
(p) The Borrower has taken no actionshall pay and indemnify the County and the Trustee against all reasonable fees, costs and has not omitted charges, including reasonable fees and expenses of attorneys, accountants, consultants and other experts, incurred in good faith (and with respect to take any actionthe Trustee, which action without negligence) and arising out of or omission to take action would in any way affect connection with the Bond Documents or impair the excludability Bonds. These obligations and those in Section 6.1 shall remain valid and in effect notwithstanding repayment of interest on the Loan hereunder or the Bonds from gross income to or termination of this Financing Agreement or the holders thereof for federal income tax purposesIndenture.
(iq) The Borrower will cooperate acknowledges, represents and warrants that it understands the nature and structure of the transactions relating to the financing of the Project; that it is familiar with the Remarketing Agent in obtaining the qualification provisions of all of the Bonds for offering documents and sale under the laws of instruments relating to such jurisdictions as the Remarketing Agent shall designate; provided that financing to which the Borrower shall not be required to incur any expense, consent to service is a party or of process in any jurisdiction or qualify to do business in any jurisdiction where which it is a beneficiary, including the Indenture; that it understands the risks inherent in such transactions; and that it has not now so subjectrelied on the County for any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by the Bond Documents or the Loan Documents, or otherwise relied on the County for any advice.
(r) All material certificates, approvals, permits and authorizations of applicable local governmental agencies, and agencies of the State and the federal government have been or will be obtained with respect to the acquisition, construction and installation of the Project and the Project will be acquired, constructed and installed and the Project will be operated pursuant to and in accordance with such certificates, approvals, permits and authorizations.
Appears in 1 contract
Samples: Financing Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower makes the following representations, warranties and covenants, all of which, together with the other representations and warranties agreements of the Borrower set forth contained in the Bond Purchase this Project Loan Agreement, dated June , 2019 (are relied upon by the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In additionGovernmental Lender, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees withFunding Lender, the Remarketing Servicer and the Fiscal Agent and serve as followsa basis for the undertakings of the Governmental Lender, the Servicer and the Fiscal Agent contained in this Project Loan Agreement:
(a) It The Borrower is a limited liability limited partnership duly organized, validly existing and in good standing under the laws of the state in which it has been organized and is duly qualified to conduct its business under the laws of the State and in every other state in which the nature of its business requires such qualification, has full legal right, power and authority to take all actions required or permitted to be taken by it underenter into this Project Loan Agreement and the other Financing Documents, and to perform carry out and observe consummate all transactions contemplated hereby and by the covenants other Financing Documents, and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, by proper action has duly taken all action necessary to be taken by it prior to such date for: (i) authorized the execution, delivery and performance of this Project Loan Agreement and the Closing Documents that have been executed other Financing Documents. All partnership general partners, if any, are duly formed and in connection with good standing under the transactions contemplated hereby and laws of their respective states of formation and, to the extent required by the Offering Documents; laws of the State, are duly qualified to transact business in the State as either domestic or foreign partnerships or limited liability companies, as applicable.
(b) The Borrower has the legal right, power and authority to (i) own its properties and assets, including, but not limited to, the Project, (ii) to carry on its business as now being conducted and the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made Borrower contemplates it to be conducted with respect to compliance with the securities or Blue Sky laws of Project and (iii) execute and deliver, carry out its obligations under, and close the various states of transactions provided for in, the United StatesFinancing Documents to which it is a party.
(c) The Closing Documents that have been executed in connection with the consummation Each of the transactions contemplated hereby and by Financing Documents to which the Offering Documents have Borrower is a party has been duly authorized, executed and delivered by it the Borrower and, assuming due authorization, execution and constitute its delivery by the other parties thereto, constitutes the legal, valid and binding obligationsobligation of the Borrower, enforceable against it the Borrower in accordance with their its respective terms, except as enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or and other similar laws, or equitable laws affecting the rights of creditors generally and general principles relating to or limiting creditors’ rights generallyof equity.
(d) The No authorization, consent, approval, order, registration, declaration or withholding of objection on the part of, or filing of or with any governmental authority, other than those already obtained or those necessary to be obtained during the course of construction of the Project, is required for the due execution and delivery or approval, as the case may be, by the Borrower of, and the performance by the Borrower of its obligations under, the Financing Documents.
(e) None of the execution and delivery of the Closing Financing Documents that have been executed in connection with to which the Borrower is a party, the consummation of the transactions contemplated hereby and by provided for in the Offering Financing Documents, or the Borrower’s fulfillment of or compliance with the terms, terms and conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and Financing Documents (i) violates or will not violate any law, regulationrule or regulation of any governmental agency or body having jurisdiction over the Borrower, or any of its activities or properties, or any judgment, order, writ, injunction or decree to which the Borrower is subject, or any of the organizational or other governing documents of the Borrower, (ii) conflicts or will conflict with any court agreement, instrument or governmental body license to which the Borrower is now a party or by which it or any of its properties or assets is bound or results or will result in a breach of any of the terms, conditions or provisions of, or constitutes or will constitute a default (with due notice or the passage of time or both) under, any such agreement, instrument or license, (iii) contravenes or will contravene any such law, rule or regulation or any such judgment, order, writ, injunction or decree, or (iv) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties property or assets of the Borrower pursuant toBorrower, except for any mortgagelien, resolution, agreement charge or instrument to which encumbrance permitted under the Borrower is a party or by which it or any of its properties is bound other than those provided for in or contemplated by the Indenture.
(e) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower terms of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United StatesFinancing Documents.
(f) Other than as described in the Offering Documents, there There is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of the Borrower’s knowledge, threatened against or affecting it wherein an unfavorable decisionthe Borrower or any of its properties (including, ruling or finding is likely without limitation, the Project), which, if adversely determined, would (i) impair the right of the Borrower to have a material adverse effect carry on its business substantially as now conducted and as contemplated by the Financing Documents, (ii) adversely affect the financial condition of the Borrower, (iii) prohibit, restrain or solvency enjoin the making of the Funding Loan or the Project Loan or the execution and delivery of any of the Financing Documents, (iv) adversely affect the validity or enforceability of any of the Financing Documents, or (v) adversely affect the exclusion from gross income for federal income tax purposes of interest on the Governmental Note.
(g) The Project and the operation of the Project (in the manner contemplated by the Financing Documents) conform and, following completion of the construction of the Project, will continue to conform in all material respects with the requirements of the Act as well as all applicable zoning, planning, building and environmental laws, ordinances and regulations of governmental authorities having jurisdiction over the Project.
(h) The Borrower has filed or caused to be filed all federal, state and local tax returns which are required to be filed or has obtained appropriate extensions therefor, and has paid or caused to be paid all taxes as shown on said returns or on any assessment received by it, to the extent that such taxes have become due.
(i) The Borrower is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party which default would materially adversely affect the transactions contemplated by the Financing Documents or the operations of the Borrower or the enforceability of the Financing Documents to which the Borrower is a party or the ability of the Borrower to perform its all obligations thereunder.
(j) The Borrower agrees to pay all costs of maintenance and repair, all Taxes and assessments, insurance premiums (including public liability insurance and insurance against damage to or destruction of the Project) concerning or in any way related to the Project, or any part thereof, and any expenses or renewals thereof, and any other governmental charges and impositions whatsoever, foreseen or unforeseen, and all utility and other charges and assessments concerning or in any way related to the Project.
(k) If the Borrower is a partnership, all of the partnership interests in the Borrower are validly issued and are fully registered, if required, with the applicable governmental authorities and/or agencies, and there are no outstanding options or rights to purchase or acquire those interests, other than as stated in or contemplated by the Borrower Partnership Agreement. Nothing in this Project Loan Agreement shall prevent the Borrower from issuing additional partnership interests or ownership interests if such units are issued in accordance with all applicable securities laws.
(l) All representations, warranties and certifications of the Borrower set forth in the Tax Regulatory Agreement and the Tax Exemption Agreement are incorporated by reference herein and the Borrower will comply with such as if set forth herein. As of the Delivery Date, the Borrower is in compliance with all requirements of the Tax Exemption Agreement, and the representations set forth in the Tax Exemption Agreement are true and accurate.
(m) The information, statements or reports furnished in writing to the Governmental Lender, the Servicer and the Funding Lender Representative by the Borrower in connection with this Project Loan Agreement or the consummation of the transactions contemplated hereby do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; and the Closing representations and warranties of the Borrower and the statements, information and descriptions contained in the Borrower’s closing certificates, as of the Delivery Date, are true and correct in all material respects, do not contain any untrue statement of a material fact, and do not omit to state a material fact necessary to make the representations, warranties, statements, information and descriptions contained therein, in the light of the circumstances under which they were made, not misleading; and any estimates or assumptions contained in any certificate of the Borrower delivered as of the Delivery Date are reasonable.
(n) To the knowledge of the Borrower, no commissioner, member, officer or employee of the Governmental Lender has been or is in any manner interested, directly or indirectly, in that person’s own name or in the name of any other person, in the Financing Documents, the Borrower or the Project, in any contract for property or materials to be furnished or used in connection with the Project, or in any aspect of the transactions contemplated by the Financing Documents.
(go) The Borrower makes intends to hold the Project for its own account and has no representation as current plans to information in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion therein.
(h) The Borrower has taken no actionsell, and has not omitted entered into any agreement, to take sell all or any action, portion of the Project other than as contemplated in the documents.
(p) The Project is located wholly within the boundaries of the State of Texas.
(q) The Borrower shall make no changes to the Project or to the operation thereof which action would affect the qualification of the Project under the Act or omission to take action would in any way adversely affect or impair the excludability of the interest on the Bonds Governmental Note from gross income to the holders thereof for federal income tax purposes. The Borrower shall operate the Project as required by the Tax Regulatory Agreement and the Tax Exemption Agreement.
(ir) The Funding Loan Agreement has been submitted to the Borrower for examination, and the Borrower, by execution of this Project Loan Agreement, acknowledges and agrees that it has participated in the drafting of the Funding Loan Agreement and that it is bound by, shall adhere to the provisions of, covenants and agrees to perform all obligations required of the Borrower pursuant to, and shall have the rights set forth by the applicable terms and conditions of, the Funding Loan Agreement.
(s) The Borrower will cooperate have a fee simple interest in the land and improvements on the Project, subject only to encumbrances and liens permitted under the Security Instrument.
(t) The Borrower acknowledges that (i) it understands the nature and structure of the transactions relating to the financing of the Project, (ii) it is familiar with the Remarketing Agent in obtaining the qualification provisions of all of the Bonds documents and instruments relating to the financing, (iii) it understands the risks inherent in such transactions, including without limitation the risk of loss of the Project, and (iv) it has not relied on the Governmental Lender, the Fiscal Agent, Xxxxxxx Mac, the Funding Lender, the Funding Lender Representative or the Servicer for offering any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by the Financing Documents or otherwise relied on the Governmental Lender, the Fiscal Agent, Xxxxxxx Mac, the Funding Lender, the Funding Lender Representative or the Servicer in any manner.
(u) The Borrower hereby verifies that it and sale its parent company, wholly- or majority-owned subsidiaries, and other affiliates, if any, do not boycott Israel and, to the extent any of this Project Loan Agreement is a contract for goods or services, will not boycott Israel during the term of the Project Loan Agreement. The foregoing verification is made solely to comply with Section 2270.002, Texas Government Code, and to the extent such Section does not contravene applicable Federal law. As used in the foregoing verification, ‘boycott Israel’ means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes. The Borrower understands ‘affiliate’ to mean an entity that controls, is controlled by, or is under common control with the laws Borrower and exists to make a profit.
(v) To the extent this Project Loan Agreement is a contract for goods or services, the Borrower represents that neither it nor any of its parent company, wholly- or majority-owned subsidiaries, and other affiliates is a company identified on a list prepared and maintained by the Texas Comptroller of Public Accounts under Section 2252.153 or Section 2270.0201, Texas Government Code, and posted on any of the following pages of such jurisdictions as officer’s internet website: xxxxx://xxxxxxxxxxx.xxxxx.xxx/purchasing/docs/sudan-list.pdf, xxxxx://xxxxxxxxxxx.xxxxx.xxx/purchasing/docs/iran-list.pdf, xxxxx://xxxxxxxxxxx.xxxxx.xxx/purchasing/docs/fto-list.pdf. The foregoing representation is made solely to comply with Section 2252.152, Texas Government Code, and to the Remarketing Agent shall designate; provided extent such Section does not contravene applicable Federal law and excludes the Borrower and its parent company, wholly- or majority-owned subsidiaries, and other affiliates, if any, that the United States government has affirmatively declared to be excluded from its federal sanctions regime relating to Sudan or Iran or any federal sanctions regime relating to a foreign terrorist organization. The Borrower shall not be required understands ‘affiliate’ to incur any expensemean an entity that controls, consent is controlled by, or is under common control with the Borrower and exists to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subjectmake a profit.
Appears in 1 contract
Samples: Funding Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The representations and warranties of the Borrower set forth in the Bond Purchase Agreement, dated June , 2019 (the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees with, the Remarketing Placement Agent as followsthat:
(a) It Each of the Borrower's representations and warranties contained in the Note Agreement and the Reimbursement Agreement are true and correct on and as of the date hereof and are hereby made to the Placement Agent as if set forth herein.
(b) The Borrower has the authority taken all necessary corporate action to take all actions required or permitted to be taken by it underauthorize, execute and to perform and observe the covenants and agreements on its part contained in, deliver this Agreement, the IndentureNote Agreement, the Loan AgreementNotes and the other documents and agreements (including, without limitation, the Reimbursement Agreement and any the Remarketing Agreement) executed and delivered (or to be executed and delivered) in connection with the issuance of the Notes and the other instrument or agreement relating thereto transactions contemplated hereby (collectively, the "Closing Related Documents").
(b) It hasto which it is or is to be, on or before the date hereofa party, duly taken all action necessary to be taken by it prior to such date for: (i) the execution, delivery and performance of the Closing Documents that have been executed in connection with the transactions contemplated hereby and by the Offering Documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(c) The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have this Agreement has been duly executed and delivered and constitutes, and the Note Agreement, the Notes and the Related Documents to which it is or is to be a party when duly executed and delivered by it and the Borrower, will constitute its the legal, valid and binding obligations, obligations of the Borrower enforceable against it in accordance with their respective terms, terms except as enforcement the enforceability thereof may be limited by bankruptcylimited
(c) There is no action, insolvencysuit, reorganizationproceeding or inquiry, moratorium or, to the best knowledge and information of the Borrower, any investigation, at law or similar lawsin equity, or equitable principles relating before or by any court, public board or body or other governmental authority, pending or, to the best knowledge and information of the Borrower, threatened against or limiting creditors’ rights generallyaffecting the Borrower wherein an unfavorable decision, ruling or finding could materially adversely affect the condition (financial or otherwise) of the Borrower, or the transactions contemplated by this Placement Agreement or the Placement Memorandum, or that in any manner raises any question concerning the legality, validity or enforceability of this Placement Agreement, the Notes, the Note Agreement or any Related Document, nor to the best knowledge and belief of the Borrower is there any basis therefor.
(d) The execution execution, delivery and delivery performance by the Borrower of this Placement Agreement, the Note Agreement, the Notes and the Related Documents are within the powers of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby Borrower and by the Offering Documents, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and will not conflict with or violate the articles of incorporation or bylaws of the Borrower or any law, regulation, order, writinjunction, injunction ruling or decree of any court by which the Borrower or governmental body or result in its property is bound, and do not and will not constitute a breach of or default under any of the termsagreement, conditions or provisions ofindenture, or constitute a default under, or result in the creation or imposition of any mortgage, lienlease, charge note or encumbrance of any nature whatsoever upon any of the properties other obligation, instrument or assets of the Borrower pursuant to, any mortgage, resolution, agreement or instrument arrangement to which the Borrower is a party or by which it the Borrower or any of its properties property is bound other than those provided for in or contemplated by the Indenture.
(e) All authorizations, consents and approvals of, notices to, registrations or filings withbound, or actions in respect ofcontravene or constitute a violation of any federal or state constitutional or statutory provision, any governmental body, agency rule or other instrumentality or court required in connection with the execution, delivery and performance by regulation to which the Borrower or any of its property is subject, the Closing Documents that have been executed in connection with the consummation breach, default, contravention or violation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the Offering Documents, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of the Borrower, threatened against or affecting it wherein an unfavorable decision, ruling or finding is likely to which could have a material adverse effect on the business or financial condition or solvency of the Borrower, and no approval or other action by, or filing or registration with, any governmental authority or agency is required in connection therewith that has not been obtained or accomplished or will not be obtained or accomplished by the date hereof.
(e) The information relating to the Borrower and the Project contained or incorporated by reference in the Placement Memorandum or otherwise supplied by the Borrower in writing for inclusion therein, including, without limitation, Appendix B thereto, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The Borrower has approved of the use and distribution of the Placement Memorandum in connection with the placement and remarketing of the Notes from time to time.
(f) The Borrower is not in default in the payment of the principal of or interest on any other of its indebtedness for borrowed money or under any instrument under or subject to which any indebtedness has been incurred and no event has occurred and is continuing that, with the lapse of time or the ability giving of the Borrower to perform its obligations notice or both, would constitute an event of default under the Closing Documentsany such instrument.
(g) The Borrower makes no representation as agrees to information in the Offering Documents relating make available to the Credit Provider Placement Agent, without cost, sufficient copies of any relevant documents pertaining to the Borrower, as reasonably may be required from time to time for the prompt and provided efficient performance by the Credit Provider for inclusion therein.
(h) The Borrower has taken no actionPlacement Agent of its obligations hereunder, and has not omitted to take any action, which action or omission to take action would including its obligations in any way affect or impair the excludability of interest on the Bonds from gross income to the holders thereof for federal income tax purposes.
(i) The Borrower will cooperate connection with the Remarketing Agent in obtaining the qualification placement of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that the Borrower shall not be required Notes from time to incur any expense, consent to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subjecttime.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The representations and warranties of the Borrower set forth in the Bond Purchase Agreementrepresents, dated June , 2019 (the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees with, the Remarketing Agent as followsthat:
(a) It has The Borrower is a California limited partnership, organized and existing under the authority to take all actions required or permitted to be taken by it underlaws of the State, is in good standing in the State, and has full legal right, power and authority under the laws of the United States of America and the State (i) to perform and observe enter into the covenants and agreements on its part contained inRegulatory Agreement, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any the other instrument or agreement relating thereto Loan Documents to which it is a party (collectively, the "Closing “Borrower Documents"”); (ii) to perform its obligations under the Borrower Documents; and (iii) to consummate the transactions on its part contemplated by the Borrower Documents.
(b) It hasUpon the execution and delivery thereof, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date for: (i) the execution, delivery and performance each of the Closing Borrower Documents that have been executed in connection with the transactions contemplated hereby and by the Offering Documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation to which it is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(c) The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been duly executed and delivered by it and a party will constitute its legal, valid and binding obligationsobligations of the Borrower, enforceable against it in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws, laws or equitable principles relating to or limiting judicial decisions affecting creditors’ rights generallygenerally and by judicial discretion in the exercise of equitable remedies.
(dc) The execution and delivery of the Closing Borrower Documents that have been executed in connection with to which it is a party, the performance by the Borrower of its obligations thereunder and the consummation of the transactions contemplated hereby and by the Offering Documents, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and thereby will not violate the Borrower’s partnership agreement, or any law, regulation, rule or ordinance or any order, writ, injunction judgment or decree of any federal, state or local court or governmental body or result in a breach of any of the terms, conditions or provisions ofand do not conflict with, or constitute a breach of, or a default under, any document, instrument or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, agreement or instrument commitment to which the Borrower is a party or by which it the Borrower or any of its properties property is bound other than those provided for in or contemplated by the Indenturebound.
(ed) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with To the execution, delivery and performance by the Borrower best of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the Offering DocumentsBorrower’s knowledge, there is no action, suit, proceeding, inquiry or investigation by or before or by any court, governmental agency or public board or body pending oror threatened against the Borrower which (i) affects or seeks to prohibit, restrain or enjoin the loaning of the amounts set forth herein to the knowledge of Borrower or the Borrower, threatened against or affecting it wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on the financial condition or solvency execution and delivery of the Borrower Documents, (ii) affects or questions the validity or enforceability of the Borrower Documents, (iii) questions the power or authority of the Borrower to carry out the transactions contemplated by, or to perform its obligations under, the Borrower Documents to which it is a party, or the powers of the Borrower to acquire, own, rehabilitate, equip or operate the Project.
(e) The Borrower is not in default under any document, instrument or commitment to which the Borrower is a party or to which it or any of its property is subject which default would or could affect the ability of the Borrower to perform carry out its obligations under the Closing Borrower Documents.
(f) Any certificate signed by a Borrower Representative and delivered pursuant to any of the Borrower Documents shall be deemed a representation and warranty by the Borrower as to the statements made therein.
(g) The Borrower makes no representation as to information in Project is located wholly within the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion thereinCity of San Diego, California.
(h) The Borrower has taken no actionwill obtain all necessary certificates, approvals, permits and has not omitted to take any action, which action or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income authorizations with respect to the holders thereof for acquisition, rehabilitation and operation of the Project from applicable local governmental agencies and agencies of the State and the federal income tax purposesgovernment.
(i) The Borrower will cooperate with shall make no changes to the Remarketing Agent in obtaining Project or to the operation thereof which would affect the qualification of the Bonds for offering and sale Project under the Act or impair the exclusion from gross income for federal income tax purposes of the interest on the Bonds. The Borrower intends to utilize all of the units that comprise the Project as multifamily rental housing during the Qualified Project Period.
(j) Not in excess of two percent (2%) of the proceeds of the Bonds will be used to pay Issuance Costs.
(k) The rehabilitation and operation of the Project in the manner presently contemplated and as described herein and in the Regulatory Agreement will not conflict with any zoning, water or air pollution or other ordinance, order, law or regulation applicable thereto. The Borrower will cause the Project to be operated in all material respects in accordance with all applicable federal, state and local laws or ordinances (including rules and regulations) relating to zoning, building, safety and environmental quality.
(l) The Borrower acknowledges, represents and warrants that it understands the nature and structure of the Project; that it is familiar with the provisions of all of the documents and instruments relating to the financing of the Project to which it is a party; that it understands the risks inherent in such transactions, including without limitation the risk of loss of the Project; and that it has not relied on the Issuer for any guidance or expertise in analyzing the financial or other consequences of such jurisdictions as financing transactions or otherwise relied on the Remarketing Agent shall designate; provided Issuer in any manner except to issue the Bonds in order to provide funds for the Loan.
(m) The Borrower intends to hold the Project for its own account, has no current plans to sell and has not entered into any agreement to sell any of the units that comprise the Project. It is hereby acknowledged, however, that the Partnership Agreement does provide for certain rights of certain of its partners to acquire the Project, and for the possible acquisition of the Project following the “Compliance Period” as identified in the Partnership Agreement, and those provisions shall not result in a breach of this Section 2.2(m).
(n) In the event the Loan proceeds are not sufficient to complete the acquisition and rehabilitation of the Project and the payment of all Issuance Costs, the Borrower will furnish any additional moneys as necessary to complete the acquisition and rehabilitation of the Project and pay all Issuance Costs.
(o) All of the proceeds from the Loan plus the income from the investment of the proceeds of the Loan will be used to pay or reimburse the Borrower for Project Costs, and at least 97% of the proceeds of the Loan will be used to pay or reimburse the Borrower for Qualified Project Costs and less than 25% of such amount will be used to pay or reimburse the Borrower for the cost of land or any interest therein. The Borrower shall assure that the proceeds of the Loan are expended so as to cause the Bonds to constitute “qualified residential rental bonds” within the meaning of Section 142(d) of the Code.
(p) The estimated total cost of the financing of the acquisition and rehabilitation of the Project is equal to or in excess of the principal amount of the Loan.
(q) The Borrower has not knowingly taken or permitted to be required taken and will not knowingly take or permit to incur be taken any expenseaction which would have the effect, consent directly or indirectly, of causing interest on any of the Bonds to service be included in the gross income of process in the owners thereof for purposes of federal income taxation.
(r) The Borrower covenants that it shall not take, or knowingly permit or suffer to be taken by the Bondowner Representative, any jurisdiction action with respect to the proceeds of the Bonds which if such action had been reasonably expected to have been taken, or qualify had been deliberately and intentionally taken, on the date of issuance of the Bonds would have caused the Bonds to do business in any jurisdiction where it is not now so subjectbe “arbitrage bonds” within the meaning of Section 148(a) of the Code.
Appears in 1 contract
Samples: Indenture
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower makes the following representations, warranties and covenants, all of which, together with the other representations and warranties agreements of the Borrower set forth contained in the Bond Purchase this Project Loan Agreement, dated June , 2019 (are relied upon by the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In additionGovernmental Lender, the BorrowerFunding Lender, by its execution hereofCCRC and the Fiscal Agent and serve as a basis for the undertakings of the Governmental Lender, represents CCRC and warrants to, and covenants and agrees with, the Remarketing Fiscal Agent as followscontained in this Project Loan Agreement:
(a) It The Borrower is a limited partnership duly organized, validly existing and in good standing under the laws of the State and is duly qualified to conduct its business under the laws of the State and in every other state in which the nature of its business requires such qualification, has the full legal right, power and authority to take all actions required or permitted to be taken by it underenter into this Project Loan Agreement and the other Financing Documents, and to perform carry out and observe consummate all transactions contemplated hereby and by the covenants other Financing Documents, and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, by proper action has duly taken all action necessary to be taken by it prior to such date for: (i) authorized the execution, delivery and performance of this Project Loan Agreement and the Closing Documents that have been executed other Financing Documents. The general partner of the Borrower is duly organized and in connection with good standing under the transactions contemplated hereby laws of its state of organization and is duly qualified to transact business in the State as either domestic or foreign corporations, as applicable. The general partner of the Borrower is duly formed and in good standing under the laws of its state of formation and, to the extent required by the Offering Documents; laws of the State, is duly qualified to transact business in the State as either domestic or foreign partnerships or limited liability companies, as applicable.
(b) The Borrower has the legal right, power and authority to (i) own its properties and assets, including, but not limited to, the Project, (ii) to carry on its business as now being conducted and the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made Borrower contemplates it to be conducted with respect to compliance with the securities or Blue Sky laws of Project and (iii) execute and deliver, carry out its obligations under, and close the various states of transactions provided for in, the United StatesFinancing Documents to which it is a party.
(c) The Closing Documents that have been executed in connection with the consummation Each of the transactions contemplated hereby and by Financing Documents to which the Offering Documents have Borrower is a party has been duly authorized, executed and delivered by it the Borrower and, assuming due authorization, execution and constitute its delivery by the other parties thereto, constitutes the legal, valid and binding obligationsobligation of the Borrower, enforceable against it the Borrower in accordance with their its respective terms, except as enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or and other similar laws, or equitable laws affecting the rights of creditors generally and general principles relating to or limiting creditors’ rights generallyof equity.
(d) The No authorization, consent, approval, order, registration, declaration or withholding of objection on the part of, or filing of or with any governmental authority, other than those already obtained or those necessary to be obtained during the course of construction of the Project, is required for the due execution and delivery or approval, as the case may be, by the Borrower of, and the performance by the Borrower of its obligations under, the Financing Documents.
(e) None of the execution and delivery of the Closing Financing Documents that have been executed in connection with to which the Borrower is a party, the consummation of the transactions contemplated hereby and by provided for in the Offering Financing Documents, or the Borrower’s fulfillment of or compliance with the terms, terms and conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and Financing Documents (i) violates or will not violate any law, regulationrule or regulation of any governmental agency or body having jurisdiction over the Borrower, or any of its activities or properties, or any judgment, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, agreement or instrument to which the Borrower is subject, or any of the organizational or 4816-8536-0354v5/024100-0013 other governing documents of the Borrower, (ii) conflicts or will conflict with any agreement, instrument or license to which the Borrower is now a party or by which it or any of its properties or assets is bound other than those provided for or results or will result in or contemplated by the Indenture.
(e) All authorizations, consents and approvals a breach of, notices to, registrations or filings with, constitutes or actions in respect ofwill constitute a default (with due notice or the passage of time or both) under, any governmental bodysuch agreement, agency instrument or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the Offering Documents, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of the Borrower, threatened against or affecting it wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on the financial condition or solvency of the Borrower or the ability of the Borrower to perform its obligations under the Closing Documents.
(g) The Borrower makes no representation as to information in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion therein.
(h) The Borrower has taken no action, and has not omitted to take any action, which action or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income to the holders thereof for federal income tax purposes.
(i) The Borrower will cooperate with the Remarketing Agent in obtaining the qualification of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that the Borrower shall not be required to incur any expense, consent to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subject.license,
Appears in 1 contract
Samples: Project Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The representations Borrower represents and warranties warrants, as of the Borrower set forth in the Bond Purchase Agreement, dated June , 2019 (the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution date hereof, represents and warrants tocovenants, for the benefit of the Lender and covenants and agrees with, the Remarketing Agent Issuer as follows:
(a) It The Borrower is duly organized and in good standing under the laws of the State of California, authorized to purchase and hold real and personal property and finance or refinance the same, and has the full legal right, power and authority to take all actions required or permitted to be taken by it under, enter into the Loan Documents and to perform carry out and observe consummate all transactions contemplated hereby and by the covenants other Loan Documents and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, by proper corporate action has duly taken all action necessary to be taken by it prior to such date for: (i) authorized the execution, delivery and performance of the Closing Loan Documents. The Borrower is duly licensed to operate and maintain its existing facilities and has all necessary power and authority to conduct the business now being conducted by it and as contemplated by this Loan Agreement
(b) The Borrower Documents that have been duly authorized, executed in connection with the transactions contemplated hereby and delivered by the Offering Documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United StatesBorrower.
(c) The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby Assuming due execution and delivery by the Offering other parties, this Loan Agreement and the other Borrower Documents have been duly executed and delivered by it and constitute its the legal, valid and binding obligations, agreements of the Borrower enforceable against it the Borrower by the Issuer or the Lender, as appropriate, in accordance with their respective terms, ; except in each case as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or similar laws, or equitable principles relating to or limiting other laws affecting the enforcement of creditors’ rights generally, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity and by public policy and by commercial reasonableness.
(d) The execution and delivery of the Closing Loan Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering DocumentsBorrower, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated and the fulfillment of or compliance with the terms and conditions hereof and thereof by the Borrower, do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, conflict with or constitute a violation or breach of or default under(with due notice or the passage of time or both) under the articles of incorporation and bylaws of the Borrower, or result in with respect to the creation Borrower, any applicable law or imposition of administrative rule or regulation, or any applicable court or administrative decree or order, or any material indenture, mortgage, liendeed of trust, charge loan agreement, lease, contract or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, other material agreement or instrument to which the Borrower is a party or by which it or its properties are otherwise subject or bound, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of its properties is bound the property or assets of the Borrower, other than those provided for in Permitted Encumbrances, which conflict, violation, breach, default, lien, charge or contemplated by the Indenture.
(e) All authorizations, consents encumbrance may materially and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of the Closing Documents that have been executed in connection with adversely affect the consummation of the transactions contemplated hereby and by the Offering Documents Loan Documents, or the financial condition, operations or business of the Borrower.
(e) As of the date hereof, no consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity to the Borrower, and with respect to the Borrower, no consent, permission, authorization, order or license of, or filing or registration with, any Governmental Authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Loan Documents, or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, except as have been obtained, given obtained or taken made and as are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the Offering Documents, there There is no action, suit, proceeding, inquiry or investigation investigation, before or by any courtcourt or federal, public board state, municipal or body pending orother Governmental Authority, pending, or to the knowledge of the Borrower, threatened in writing, against or affecting it wherein an unfavorable decisionthe Borrower or the assets, ruling properties or finding is likely operations of the Borrower:
(i) to restrain or enjoin the issuance or delivery of any of the Loan Documents or the payment of Payments hereunder;
(ii) in any way contesting or adversely affecting the authority for or the validity of the Loan Documents;
(iii) in any way contesting the corporate existence or powers of the Borrower;
(iv) which, if determined adversely to it, would materially adversely affect the consummation of the transactions contemplated by the Loan Documents or the ability of the Borrower to perform its material obligations hereunder or thereunder; or could reasonably be expected to have a material adverse effect on the financial condition conditions, the operations or solvency business of the Borrower Borrower; or
(v) contesting the Borrower’s status as an organization described in Section 501(c)(3) of the Code or the ability which would subject any income of the Borrower to perform its obligations federal income taxation to such extent as would result in loss of the exclusion from gross income for federal income tax purposes of interest on any portion of the Issuer Loan Obligation under Section 103 of the Closing DocumentsCode.
(g) The As of the date hereof, no written information, exhibit or report furnished to the Issuer or the Lender by the Borrower makes no representation in connection with the negotiation of the Loan Documents or otherwise in connection with the transactions contemplated hereby and thereby, contains any untrue statement of a material fact regarding the Borrower, the Property or the Borrower’s business, or omits to state a material fact regarding the Borrower, the Property or the Borrower’s business necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. All projections, valuations or pro forma financial statements provided to the Issuer or the Lender by Borrower present Borrower’s good faith opinion as to information in the Offering Documents relating to the Credit Provider such projections, valuations and provided by the Credit Provider for inclusion thereinpro forma condition and results.
(h) The Borrower has taken no actionheretofore furnished to the Issuer and the Lender the audited financial statements of the Borrower for its fiscal years ended June 30, 2014 and June 30, 2015, and has not omitted the related statement of revenues, expenditures, transfer and changes in net assets and changes in financial position for the years then ended and information related to take any actionthe Project. The information relating to the Project is complete and accurate and those financial statements present fairly, which action or omission to take action would in any way affect or impair all material respects, the excludability financial condition of interest the Borrower on the Bonds from gross income dates thereof, and the activities and cash flows for the periods then ended were prepared in accordance with GAAP. Since June 30, 2015, there has been no Material Adverse Change in the assets, operations or financial condition of the Borrower, other than as disclosed in writing to the holders thereof for federal income tax purposesIssuer and the Lender.
(i) As of the Closing Date, the Borrower has good and marketable fee title to the Property free and clear from all encumbrances other than Permitted Encumbrances. The Borrower will cooperate enjoys the peaceable and undisturbed possession of all real and personal property which is material to its operation.
(j) The Borrower is not in default (and no event has occurred and is continuing which with the Remarketing Agent in obtaining giving of notice or the qualification passage of time or both could constitute a default) (1) under the Borrower Documents, or (2) with respect to any order or decree of any court binding against the Borrower or any order, regulation or demand of any federal, state, municipal or other Governmental Authority binding against the Borrower, which default could reasonably be expected to have a Material Adverse Effect on the consummation of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that transactions contemplated by the Borrower shall Documents, or the financial condition, operations or business of the Borrower.
(k) All material certificates, approvals, permits and authorizations of applicable local governmental agencies, and agencies of the State and the federal government were obtained, or will be obtained during the course of construction of the Improvements, with respect to the construction and installation of the Facilities and operation of the Facilities, and the Facilities have been or will be constructed, installed operated pursuant to and in accordance with such certificates, approvals, permits and authorizations.
(l) The Borrower acknowledges, represents and warrants that, except for the express representations and warranties of the Issuer set forth herein, it has not relied on the Issuer or Lender for any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by the Borrower Documents or otherwise relied on the Issuer or Lender for any advice. The Borrower acknowledges that it has been advised by, or has had the opportunity to be required advised by, its own financial advisors in connection with the financing and refinancing of the Project.
(m) No portion of the Tax-Exempt Financed Property includes any property used or to incur be used for sectarian instruction or study, as a place for devotional activities or religious worship, or primarily in connection with any expensepart of the program of a school or department of divinity for any religious denomination.
(n) The Borrower is an organization described in Section 501(c)(3) of the Code, consent does not constitute a private foundation under Section 509(a) of the Code, and the income of the Borrower is exempt from federal taxation under Section 501(a) of the Code. The Borrower has received a determination from the Internal Revenue Service to service the foregoing effect, and none of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subjectthe bases for such determination have changed since the date thereof.
Appears in 1 contract
Samples: Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower makes the following representations, warranties and covenants, all of which, together with the other representations and warranties agreements of the Borrower set forth contained in the Bond Purchase this Project Loan Agreement, dated June , 2019 (are relied upon by the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In additionGovernmental Lender, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees withFunding Lender, the Remarketing Servicer and the Fiscal Agent and serve as followsa basis for the undertakings of the Governmental Lender, the Servicer and the Fiscal Agent contained in this Project Loan Agreement:
(a) It The Borrower is a limited partnership duly organized, validly existing and in good standing under the laws of the State of California and is duly qualified to conduct its business under the laws of the State and in every other state in which the nature of its business requires such qualification, has the full legal right, power and authority to take all actions required or permitted to be taken by it underenter into this Project Loan Agreement and the other Financing Documents, and to perform carry out and observe consummate all transactions contemplated hereby and by the covenants other Financing Documents, and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, by proper action has duly taken all action necessary to be taken by it prior to such date for: (i) authorized the execution, delivery and performance of this Project Loan Agreement and the Closing Documents that have been executed other Financing Documents. All partnership general partners are duly formed and in connection with good standing under the transactions contemplated hereby and laws of their respective states of formation and, to the extent required by the Offering Documents; laws of the State, are duly qualified to transact business in the State as either domestic or foreign partnerships or limited liability companies, as applicable.
(b) The Borrower has the legal right, power and authority to (i) own its properties and assets, including, but not limited to, the Project, (ii) to carry on its business as now being conducted and the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made Borrower contemplates it to be conducted with respect to compliance with the securities or Blue Sky laws of Project and (iii) execute and deliver, carry out its obligations under, and close the various states of transactions provided for in, the United StatesFinancing Documents to which it is a party.
(c) The Closing Documents that have been executed in connection with the consummation Each of the transactions contemplated hereby and by Financing Documents to which the Offering Documents have Borrower is a party has been duly authorized, executed and delivered by it the Borrower and, assuming due authorization, execution and constitute its delivery by the other parties thereto, constitutes the legal, valid and binding obligationsobligation of the Borrower, enforceable against it the Borrower in accordance with their its respective terms, except as enforcement may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or and other similar laws, or equitable laws affecting the rights of creditors generally and general principles relating to or limiting creditors’ rights generallyof equity.
(d) The No authorization, consent, approval, order, registration, declaration or withholding of objection on the part of, or filing of or with any governmental authority, other than those already obtained or those necessary to be obtained during the course of rehabilitation of the Project, is required for the due execution and delivery or approval, as the case may be, by the Borrower of, and the performance by the Borrower of its obligations under, the Financing Documents.
(e) None of the execution and delivery of the Closing Financing Documents that have been executed in connection with to which the Borrower is a party, the consummation of the transactions contemplated hereby and by provided for in the Offering Financing Documents, or the Borrower’s fulfillment of or compliance with the terms, terms and conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and Financing Documents (i) violates or will not violate any law, regulationrule or regulation of any governmental agency or body having jurisdiction over the Borrower, or any of its activities or properties, or any judgment, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, agreement or instrument to which the Borrower is subject, or any of the organizational or other governing documents of the Borrower, (ii) conflicts or will conflict with any agreement, instrument or license to which the Borrower is now a party or by which it or any of its properties or assets is bound other than those provided for or results or will result in or contemplated by the Indenture.
(e) All authorizations, consents and approvals a breach of, notices to, registrations or filings with, constitutes or actions in respect ofwill constitute a default (with due notice or the passage of time or both) under, any governmental bodysuch agreement, agency instrument or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the Offering Documents, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of the Borrower, threatened against or affecting it wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on the financial condition or solvency of the Borrower or the ability of the Borrower to perform its obligations under the Closing Documents.
(g) The Borrower makes no representation as to information in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion therein.
(h) The Borrower has taken no action, and has not omitted to take any action, which action or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income to the holders thereof for federal income tax purposes.
(i) The Borrower will cooperate with the Remarketing Agent in obtaining the qualification of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that the Borrower shall not be required to incur any expense, consent to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subject.license,
Appears in 1 contract
Samples: Project Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The representations and warranties of the Borrower set forth in the Bond Purchase Agreement, dated June , 2019 (the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution hereof, represents and warrants to, covenants with the Issuer and covenants and agrees with, the Remarketing Agent Underwriter as follows:
(a) It The Borrower is duly organized and existing as a limited partnership under the laws of California, has the full legal right, power and authority to take all actions required or permitted own its properties and to be taken conduct its business as described in the Official Statement and to enter into and to carry out and consummate the transactions contemplated by it underthe Bond Documents to which the Borrower is a party (the “Borrower Documents”), and is duly qualified to perform do such business and observe is in good standing wherever such qualification and/or standing are required, including the covenants and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents")State.
(b) It hasThe information in the Official Statement under the headings “THE PROJECT AND THE PRIVATE PARTICIPANTS,” “PLAN OF FINANCING” AND “ABSENCE OF LITIGATION—The Borrower” was, on or before the date thereof, and is, on the date hereof, duly taken all action true and correct and did not, on the date thereof, and does not, on the date hereof, contain any untrue statement of a material fact or omit to state a material fact necessary in order to be taken by it prior to such date for: (i) make the executionstatements contained therein, delivery and performance in light of the Closing Documents that have been executed in connection with the transactions contemplated hereby and by the Offering Documents; and (ii) the carrying outcircumstances under which they were made, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United Statesnot misleading.
(c) The Closing By all necessary action, the Borrower has duly authorized and adopted the Borrower Documents that have been executed and approved the execution and delivery of the Borrower Documents, and the performance by the Borrower of the obligations in connection with the consummation issuance of the Bonds on its part contained in the Borrower Documents and the consummation by it of all other transactions contemplated hereby and by the Offering Indenture and the Borrower Documents have been duly executed and delivered by it and in connection with the issuance of the Bonds.
(d) On the Closing Date, the Borrower Documents will constitute its legalthe valid, valid legal and binding obligationsobligations of the Borrower (assuming due authorization, execution and delivery by the respective other parties thereto, where necessary), enforceable against it in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or and other similar laws, or equitable principles relating to or limiting laws of general applicability affecting the enforcement of creditors’ rights generallyand to general principles of equity, regardless of whether such enforceability is considered in equity or in law.
(de) The execution and delivery As of the Closing Documents that have been executed date hereof, the Borrower is not in connection with the consummation any material respect in violation of, breach of or default under any applicable constitutional provision or law of any state or of the transactions contemplated hereby and by the Offering DocumentsUnited States of America, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and will not violate any law, regulation, order, writ, injunction rule or decree regulation of any court or governmental agency or body having jurisdiction over the Borrower or result in a breach of any of the termsits activities, conditions properties or provisions ofassets, or constitute a default underany indenture, or result in the creation or imposition of any mortgage, lien, charge or encumbrance deed of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgagetrust, resolution, note agreement (including, without limitation, the Borrower Documents) or other agreement or instrument to which the Borrower is a party or by which it the Borrower or any of its property or assets is bound, which violation or breach of or default would have a material adverse affect upon the transactions contemplated by this Bond Purchase Agreement, and no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute such a default or event of default under any such instruments; and the execution and delivery of the Borrower Documents, and compliance with the provisions on the Borrower’s part contained therein, to the best of Borrower’s knowledge, do not and will not conflict with or constitute on the part of the Borrower a violation or breach of or default under any constitutional provision or law of any state or of the United States of America, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Borrower or any of its activities, properties or assets, or any indenture, mortgage, deed of trust, resolution, note agreement (including, without limitation, the Borrower Documents) or other agreement or instrument to which the Borrower is a party or by which the Borrower or any of its property or assets is bound other than those provided for in which breach or default would have a material adverse affect upon the transactions contemplated by this Bond Purchase Agreement, nor will any such execution, delivery or compliance result in the Indenturecreation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower or under the terms of any such law, regulation or instrument, except as provided by the Bonds or the Borrower Documents.
(ef) All consents, approvals, authorizations, consents and approvals of, notices to, registrations orders of or filings or registrations with any governmental authority, board, agency or commission of any state or of the United States of America having jurisdiction required in connection with, or actions in respect ofthe absence of which would materially adversely affect, any governmental body, agency the execution and delivery by the Borrower of the Borrower Documents or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of the Closing Documents that its obligations thereunder have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given obtained or taken made and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(fg) Other than as described in As of the Offering Documentsdate hereof, there is no action, suit, proceeding, inquiry or investigation investigation, at law or in equity, before or by any courtjudicial or administrative court or governmental agency or body, public board state, federal or body other, pending or, to Borrower’s actual knowledge, threatened against the Borrower, affecting the existence of the Borrower or the titles of its officers executing this Bond Purchase Agreement to their respective offices, or contesting or affecting as to the Borrower the validity or enforceability of the Act, the Bonds, any Borrower Document or the execution and delivery or adoption by the Borrower of any Borrower Document, or in any way contesting or challenging the completeness or accuracy of the Official Statement or the powers of the Borrower or its authority with respect to the Borrower Documents or the consummation of the transactions contemplated hereby or thereby; nor, to the best knowledge of the Borrower, threatened against is there any basis for any such action, suit, proceeding, inquiry or affecting it investigation, wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on would materially adversely affect the Borrower’s financial condition or solvency operations or the validity of the Borrower authorization, execution, delivery or the ability of performance by the Borrower to perform its obligations under the Closing Documents.
(g) The of any Borrower makes no representation as to information in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion thereinDocument.
(h) The Borrower has taken no actionwill furnish such information, execute such instruments and has not omitted to take any action, which such other action or omission to take action would in any way affect or impair cooperation with the excludability of interest on Underwriter as the Bonds from gross income to the holders thereof for federal income tax purposes.
Underwriter may reasonably request in order (i) The Borrower will cooperate with to qualify the Remarketing Agent in obtaining Bonds for offer and sale under the qualification Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States of America as the Underwriter may designate and (ii) to determine the eligibility of the Bonds for offering and sale investment under the laws of such jurisdictions states and other jurisdictions, and will use its best efforts to continue such qualifications in effect so long as required for the Remarketing Agent shall designatedistribution of the Bonds; provided provided, however, that the Borrower shall not be required to incur any expense, register as a dealer or broker of securities or execute a general or special consent to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subject.
(i) Any certificate signed by the Borrower and delivered to the Underwriter or the Issuer pursuant to the Indenture or the Borrower Documents shall be deemed a representation and warranty by the Borrower to the Underwriter and the Issuer as to the statements made therein.
(j) The Borrower will not take or omit to take any action, within its direct or indirect control, which action or omission will adversely affect the exclusion from gross income for federal income tax purposes of the interest on the Bonds.
(k) The Borrower shall honor all other covenants contained in the Borrower Documents, which agreements are incorporated herein and made a part of this Bond Purchase Agreement. The execution and delivery of this Bond Purchase Agreement by the Borrower shall constitute a representation to the Underwriter that the representations and warranties contained in this Section are true and correct in all material respects as of the date hereof.
Appears in 1 contract
Samples: Bond Purchase Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. In order to induce the Placement Agent and the Issuer to enter into this Agreement, the Borrower represents, warrants and covenants to the Placement Agent and the Issuer as follows:
(a) The Borrower is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Alaska and is qualified to transact business as a limited liability company in good standing under the laws of the State of Alaska.
(b) The Borrower is authorized under the laws of the State of Alaska to carry out and consummate all of the transactions contemplated on its part by this Placement Agreement, each of the Financing Documents (as defined in the Loan Agreement) and all other documents to which the Borrower is a party and which relate to the Bonds (collectively, the “Borrower Documents”).
(c) The Borrower has all necessary power and authority (i) to conduct its business and operate all of its properties and facilities, including the Project; (ii) to execute and deliver the Borrower Documents and to perform its obligations under the Borrower Documents; and (iii) to carry out and consummate all the transactions contemplated on its part by the Borrower Documents.
(d) The Borrower has duly authorized all actions required to be taken by it for the execution and delivery of the Borrower Documents, and due performance of the Borrower Documents. On or prior to the Closing Date, each of the Borrower Documents will have been duly executed and delivered by the Borrower, will not have been amended, modified, or rescinded, and will be in full force and effect as of the Closing Date.
(e) The representations and warranties of the Borrower set forth contained in the Bond Purchase Agreement, dated June , 2019 Borrower Documents are on the date hereof (and as of the "Bond Purchase Agreement"), relating to the Bonds are Closing Date will be) true and correct correct, and do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein not misleading in the light of circumstances under which they were made.
(f) The Borrower Documents are hereby incorporated substantially in the forms approved by reference hereinthe Borrower and upon the execution and delivery thereof, as though fully set forth herein. In addition, each will constitute the valid and legally binding obligation of the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees with, the Remarketing Agent as follows:
(a) It has the authority to take all actions required or permitted to be taken by it under, and to perform and observe the covenants and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date for: (i) the execution, delivery and performance of the Closing Documents that have been executed in connection with the transactions contemplated hereby and by the Offering Documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(c) The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been duly executed and delivered by it and constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms, its terms (except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or similar laws, or equitable principles and other laws relating to or limiting affecting creditors’ rights generallyrights, to the application of equitable principles, and to the exercise of judicial discretion in appropriate cases).
(dg) The execution and delivery Borrower will apply the moneys loaned to it by the Issuer from the proceeds of the Closing Documents that have been executed in connection with the consummation sale of the transactions contemplated hereby and by the Offering Documents, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result Bonds as specified in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of Indenture and the properties or assets of the Borrower pursuant to, any mortgage, resolution, agreement or instrument to which the Borrower is a party or by which it or any of its properties is bound other than those provided for in or contemplated by the IndentureLoan Agreement.
(eh) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the Offering Documents, there There is no action, suit, proceeding, inquiry or investigation investigation, at law or in equity, before or by any court, public board or body body, pending (as to which the Borrower has received notice or service of process) or, to the knowledge of the Borrower, threatened against or affecting it the Borrower (or, to the knowledge of the Borrower, any meritorious basis therefor)
(i) attempting to limit, enjoin or otherwise restrict or prevent the Borrower from functioning, or contesting or questioning the existence of the Borrower or the titles of the current officers of the Borrower to their offices, the power or authority of the Borrower to perform its obligations under or to consummate the transactions contemplated by the Borrower Documents, or to own, equip, or operate the Project Facility; or (ii) wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on would adversely affect (A) the issuance, sale, or delivery of the Bonds; (B) the existence or powers of the Borrower; (C) the financial condition or solvency position of the Borrower Borrower; (D) the acquisition, development or the ability operation of the Project Facility; (E) the transactions contemplated hereby or by the documents referred to in Clause (F) immediately following; (F) the validity or enforceability of the Bonds, the Indenture, the Borrower Documents or any agreement or instrument to perform its obligations under which the Closing Documents.
(g) The Borrower makes no representation as to information is a party and which is used or contemplated for use in the Offering Documents relating to consummation of the Credit Provider and provided transactions contemplated hereby or by the Credit Provider aforesaid documents; or (G) the exclusion from gross income for inclusion therein.
(h) The Borrower has taken no action, and has not omitted to take any action, which action or omission to take action would in any way affect or impair the excludability federal income tax purposes of interest on the Bonds from gross income to the holders thereof for federal income tax purposesBonds.
(i) The execution and delivery by the Borrower of the Borrower Documents, and the compliance by the Borrower with the provisions thereof, do not conflict with or constitute on the part of the Borrower a violation of, breach of or default under (i) its certificate of organization or operating agreement; (ii) any constitutional provision, statute, indenture, mortgage, lease, resolution, note, agreement or other agreement or instrument to which it is a party or by which it is bound; or (iii) any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Borrower or any of its properties. The Borrower is not in default in any material respect under any applicable statute, rule, order, or regulation of any governmental body.
(j) All licenses, consents, permits, approvals, authorizations and orders of any governmental or regulatory authorities that are required to be obtained by the Borrower in connection with the issuance and sale of the Bonds, the execution and delivery of this Agreement, the acquisition, construction and operation of the Project Facility, and the consummation of the transactions contemplated by the Borrower Documents have been duly obtained and remain in full force and effect (in the case of such licenses, consents, permits, approvals, authorizations and orders required to be obtained as of the date hereof) or will be obtained and be in full force and effect on the Closing Date (in the case of all other such licenses, consents, permits, approvals, authorizations), except that no representation is made as to compliance with any applicable state securities or “Blue Sky” laws. The Borrower has complied, or by the Closing Date will have complied, with all applicable provisions of law requiring any designation, declaration, filing, registration, or qualification with any governmental entity in connection therewith, other than as may be required by federal securities laws or any applicable state securities or “Blue Sky” laws.
(k) Neither the Borrower nor anyone acting on its behalf has, directly or indirectly, offered the Bonds for sale to, or solicited any offer to buy the same from, any Person. The Borrower has not prepared any official statement, prospectus, offering circular or other offering statement for dissemination to any Person in connection with the Bonds.
(l) Neither the Securities and Exchange Commission nor any state securities commission has issued or, to the best of the knowledge of the Borrower, threatened to issue, any order against the Borrower seeking to enjoin the offer or sale of the Bonds.
(m) Any certificate signed by an authorized officer of the sole member of the Borrower and delivered to the Issuer or the Placement Agent shall be deemed a representation and warranty by the Borrower to the Issuer or the Placement Agent as to the statements made therein.
(n) The Borrower has and will cooperate with the Remarketing Placement Agent and its counsel in obtaining the qualification of any endeavor to qualify the Bonds for offering and sale under the securities or “Blue Sky” laws of such jurisdictions of the United States of America as the Remarketing Placement Agent shall designatemay request; provided provided, however, that the Borrower will not be required to qualify as a foreign corporation or file any special or general consents to service of process under the laws of any state.
(o) Between the date hereof and the Closing Date the Borrower will not, without the prior written consent of the Placement Agent, incur any material liabilities, direct or contingent, other than in the ordinary course of business.
(p) As of the Closing Date, the Borrower has created no other lien, encumbrance, or security interest with respect to the Project Facility other than those included in or permitted by the Loan Agreement.
(q) The Borrower is obligated to pay all amounts due to the Issuer for indemnification and reimbursement of its expenses in connection with the Project Facility and the Bonds. The Borrower acknowledges and agrees that the Issuer is not required to take any action with respect to the Project Facility or the Bonds unless it receives written request therefor and indemnity for the cost thereof satisfactory to the Issuer prior to the taking of any such action.
(r) Between the date hereof and the Closing Date, the Borrower shall not take any action or permit any action within its control to be required taken on its behalf, or cause or permit any circumstance within its control to incur any expensearise or continue, consent to service if such action or circumstance would result in the loss of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subjectexclusion of the interest on the Bonds from gross income for federal income tax purposes.
Appears in 1 contract
Samples: Placement Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The representations In order (i) to induce the Underwriters to enter into this Purchase Agreement and warranties (ii) to induce the Issuer to enter into the Issuer Documents and to issue the Bonds for the purposes stated above, and in consideration of the Borrower set forth in execution and delivery of this Purchase Agreement by the Bond Purchase Agreement, dated June , 2019 (the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In additionother parties hereto, the Borrower, by its execution hereofas of the date hereof and as of the date of the Closing, represents and represents, warrants to, and covenants to the Issuer and agrees with, the Remarketing Agent as followsUnderwriters that:
(a) It has The Borrower is a limited liability company validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in and in good standing in the State of Colorado.
(b) The Borrower has, and on the date of Closing will have, the requisite legal, right, power and authority to take (i) authorize in conjunction with the Issuer the distribution and delivery of each of the Preliminary Official Statement and the Official Statement and the use thereof by the Underwriters in connection with the issuance and sale of the Bonds in accordance with the terms thereof and of this Purchase Agreement, (ii) enter into execute, deliver and perform its respective obligations under (A) the Construction Contract, the Construction Guarantee and the O&M Contract (collectively, the “Project Documents”) and (B) each of the other Transaction Documents to which the Borrower is a party (collectively with the Project Documents, the “Borrower Documents”); provided that to the extent any of the Borrower Documents were executed prior to the date of the Closing, the Borrower had, as of the applicable date of execution, the requisite legal right, power and authority to enter into and perform its obligations thereunder and (iii) conduct its business as described in the Preliminary Official Statement and the Official Statement.
(c) The officers or authorized persons of the Borrower who have executed or will execute (or who have approved or will approve) any Borrower Document on or prior to the Closing Date had at the time of execution or approval or have, as applicable, the requisite authorization to execute and approve such Borrower Documents.
(d) The Borrower has duly authorized and approved by all actions required or permitted to be taken necessary action: (i) the issuance and sale of the Bonds by it underthe Issuer upon the terms and conditions set forth in this Purchase Agreement, in the Official Statement and in the Indenture, (ii) the distribution and delivery of each of the Preliminary Official Statement and the Official Statement and the use thereof by the Underwriters and (iii) the execution and delivery of, and to perform and observe the covenants and agreements performance by the Borrower of the obligations on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Borrower Documents").
(be) It has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date for: (i) the execution, delivery and performance of the Closing Documents that have been executed in connection with the transactions contemplated hereby and by the Offering Documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(c) The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been duly When executed and delivered by it the Borrower and any other parties thereto, each Borrower Document will constitute its (or did constitute and continues to constitute, in the case of any Borrower Document executed prior to the Closing Date) the legal, valid and binding obligationsobligations of the Borrower, enforceable against it the Borrower in accordance with their respective terms, its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent transfer, liquidation and other similar matters now or similar laws, or equitable principles hereafter enacted relating to or limiting creditors’ rights generallygenerally (regardless of whether enforcement is controlled in a proceeding at equity or at law) or by principles of equity which permit the exercise of judicial discretion and except as enforceability of indemnification provisions may be limited by consideration of public policy).
(df) The execution execution, delivery and delivery performance by the Borrower of this Purchase Agreement and the other Borrower Documents and the approval by the Borrower of the Closing Documents that have been executed Preliminary Official Statement and the Official Statement for use in connection with the consummation respect of the transactions issuance and sale of the Bonds as contemplated hereby therein and in this Purchase Agreement, and the compliance by the Offering Documents, compliance Borrower with the terms, conditions or provisions thereof, its obligations under any and consummation all of the transactions herein and therein contemplated foregoing documents, do not and will not violate any lawnot: (i) conflict with or contravene the certificate of formation, regulationas amended, orderor the limited liability company agreement, writas amended, injunction or decree of any court or governmental body the Borrower, (ii) conflict with or result in a the breach of or constitute a default under any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any other agreement, indenture, mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, agreement lease or instrument to which the Borrower is a party or by which it or any of its properties is bound other than those provided for in or contemplated by the Indenture.
(e) All authorizationsany existing law, consents and approvals ofstatute, notices to, registrations rule or filings withregulation, or actions in respect of, any governmental body, agency court order or other instrumentality or court required in connection with the execution, delivery and performance by decree of which the Borrower of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtainedhas notice, given or taken and are in full force and effect; provided that no representation which is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the Offering Documents, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, applicable to the knowledge Borrower or any of the Borrowerits properties except, threatened against in each case, as to any conflict, contravention, breach or affecting it wherein an unfavorable decision, ruling or finding is likely default that would not reasonably be expected to have a material adverse change in or effect on on: (A) the business, properties, performance, results of operations or financial condition or solvency of the Borrower; (B) the legality, validity or enforceability of a material provision of a Borrower or Document; (C) the Borrower’s ability to observe and perform its material obligations under any Borrower Document; (D) the rights of the Secured Parties under the Borrower Documents, including in respect of security interests created pursuing to the Borrower Documents the ability of the Borrower Secured Parties to perform its obligations enforce their rights and remedies under the Closing Borrower Documents.
(g) The Borrower makes ; provided that, in each case, no representation as to information effect arising out of or in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion therein.
(h) The Borrower has taken no action, and has not omitted to take connection with or resulting from any action, which action or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income to the holders thereof for federal income tax purposes.
(i) The Borrower will cooperate with the Remarketing Agent in obtaining the qualification of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent following shall designatebe deemed, either alone or in combination, to constitute or contribute to a material adverse effect; provided that the Borrower shall not be required to incur any expense(1) general economic conditions or changes therein, consent to service of process (2) financial, banking currency or capital markets fluctuations or conditions including changes in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subject.interest rates,
Appears in 1 contract
Samples: Bond Purchase Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower hereby represents and warrants that as of the date of this Amendment and after giving effect thereto (a) no event has occurred and is continuing which, after giving effect to this Amendment, constitutes a Default or an Event of Default, (b) the representations and warranties of the Borrower set forth contained in the Bond Purchase Agreement, dated June , 2019 (Loan Agreement and the "Bond Purchase Agreement"), relating to the Bonds other Financing Agreements are true and correct on and are hereby incorporated by reference herein, as of the date hereof to the same extent as though fully set forth herein. In addition, made on and as of the Borrower, by its execution date hereof, represents except to the extent such representations and warrants towarranties specifically relate to an earlier date, in which case they are true and covenants correct as of such earlier date, (c) the execution and agrees with, delivery by the Remarketing Agent as follows:
(a) It has Borrower of this Amendment and the authority to take all actions required or permitted to be taken performance by it under, and to perform and observe the covenants and agreements on its part contained in, this Agreement, the Indenture, Borrower of the Loan Agreement, the Reimbursement Agreement as amended by this Amendment, are within its corporate power and any other instrument or agreement relating thereto (collectively, the "Closing Documents").
(b) It has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date for: (i) the execution, delivery and performance of the Closing Documents that have been executed in connection with the transactions contemplated hereby and by the Offering Documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(c) The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been duly executed authorized by all necessary corporate action, (d) this Amendment and delivered the Loan Agreement, as amended by it and constitute its this Amendment, are legal, valid valid, and binding obligations, obligations of the Borrower enforceable against it the Borrower in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws, or equitable principles relating to or limiting creditors’ rights generally.
and (de) The the execution and delivery by the Borrower of this Amendment and the performance by the Borrower of the Closing Documents that have been executed in connection with Loan Agreement, as amended by this Amendment, do not require the consummation consent of any Person and do not contravene the terms of the transactions contemplated hereby and by the Offering DocumentsBorrower's certificate of incorporation or bylaws or any indenture, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions ofagreement, or constitute a default under, or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, agreement or instrument undertaking to which the Borrower is a party or by which it the Borrower or any of its properties property is bound other than those provided for in or contemplated by the Indenturebound.
(e) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described in the Offering Documents, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of the Borrower, threatened against or affecting it wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on the financial condition or solvency of the Borrower or the ability of the Borrower to perform its obligations under the Closing Documents.
(g) The Borrower makes no representation as to information in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion therein.
(h) The Borrower has taken no action, and has not omitted to take any action, which action or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income to the holders thereof for federal income tax purposes.
(i) The Borrower will cooperate with the Remarketing Agent in obtaining the qualification of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that the Borrower shall not be required to incur any expense, consent to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subject.
Appears in 1 contract
Samples: Loan and Security Agreement (American Builders & Contractors Supply Co Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. (a) The Borrower makes the representations and warranties of the Borrower Parties set forth in Sections 4.1 and 4.2 of the Bond Purchase Agreement, dated June , 2019 (the "Bond Purchase Agreement"), relating Revolving Loan Agreement to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees with, the Remarketing Agent as follows:
(a) It has the authority to take all actions required or permitted to be taken by it under, and to perform and observe the covenants and agreements on its part contained in, this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, the "Closing Documents")Purchaser.
(b) It hasThe Borrower further represents, on or before warrants, covenants and agrees with the Purchaser that, as of the date hereof, duly taken all action necessary hereof and the date of each Capital Contribution to be taken made by it prior to such date for: the Purchaser, (i) this Agreement has been duly authorized by the executionBorrower, delivery and, when this Agreement has been duly executed, issued and performance delivered by the Purchaser and the Borrower, this Agreement will constitute the valid and legally binding obligation of the Closing Documents that have been executed Borrower, enforceable in connection accordance with its terms (subject to bankruptcy, insolvency, liquidation, reorganization or other laws of general application relating to or affecting the transactions contemplated hereby rights of creditors and by the Offering Documents; and to general principles of equity), (ii) the carrying out, giving effect to, consummation and performance issuance of the transactions and obligations contemplated hereby and related Preference Shares has been duly authorized by the Offering Documents; Borrower and, provided that the purchase price therefor has been paid in full and, upon entry in the Register, the Preference Shares will be duly issued as fully paid and non-assessable shares and the Purchaser will be the registered holder of such number of Preference Shares or as will be noted against its name on such Registers and (iii) the Borrower has not issued any Preference Shares other than the Preference Shares issued to the Purchaser and the Borrower has issued 250 ordinary shares to the Borrower and no representation is made with respect to compliance with the securities or Blue Sky laws other shares of the various states of the United StatesBorrower have been issued.
(c) The Closing Documents that have been executed in connection Borrower represents, warrants, covenants and agrees with the consummation Purchaser that it will not issue additional securities (including, without limitation, options, warrants or derivatives) without the prior written consent of the transactions contemplated hereby and by the Offering Documents have been duly executed and delivered by it and constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws, or equitable principles relating to or limiting creditors’ rights generallyPurchaser.
(d) The execution Borrower represents, warrants, covenants and delivery agrees that (to the extent the same is within its power and control) it will not amend its LLC Agreement without the prior written consent of the Closing Documents that have been executed in connection with Purchaser, the consummation of Administrative Agent and the transactions contemplated hereby and by the Offering Documents, compliance with the terms, conditions or provisions thereof, and consummation of the transactions herein and therein contemplated do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower pursuant to, any mortgage, resolution, agreement or instrument to which the Borrower is a party or by which it or any of its properties is bound other than those provided for in or contemplated by the IndentureCollateral Manager.
(e) All authorizationsThe Borrower represents, consents warrants, covenants and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency or other instrumentality or court required in connection agrees with the execution, delivery Purchaser that it will comply at all times and performance by the Borrower of the Closing Documents that have been executed in connection all material respects with the consummation of the transactions contemplated hereby terms and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(f) Other than as described agreements set forth in the Offering DocumentsTransaction Documents (including, there is no actionwithout limitation, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of the Borrower, threatened against or affecting it wherein an unfavorable decision, ruling or finding is likely to have a material adverse effect on the financial condition or solvency agreements and covenants of the Borrower or the ability Parties set forth in Sections 5.1 and 5.2 of the Borrower Revolving Loan Agreement) to perform its obligations under the Closing Documents.
(g) The Borrower makes no representation as to information in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion therein.
(h) The Borrower has taken no action, and has not omitted to take any action, which action or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income to the holders thereof for federal income tax purposes.
(i) The Borrower will cooperate with the Remarketing Agent in obtaining the qualification of the Bonds for offering and sale under the laws of such jurisdictions as the Remarketing Agent shall designate; provided that the Borrower shall not be required to incur any expense, consent to service of process in any jurisdiction or qualify to do business in any jurisdiction where it is not now so subjecta party.
Appears in 1 contract
Samples: Equity Purchase Agreement (Owl Rock Core Income Corp.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The representations and warranties of the Borrower set forth in the Bond Purchase Agreementrepresents, dated June , 2019 (the "Bond Purchase Agreement"), relating to the Bonds are true and correct and are hereby incorporated by reference herein, as though fully set forth herein. In addition, the Borrower, by its execution hereof, represents and warrants to, and covenants and agrees with, the Remarketing Agent as follows:
(a) It The Borrower is a limited liability limited partnership duly created under the laws of the State of Florida, is in good standing and duly authorized to conduct its business in the State of Florida and all other states where its activities require such authorization, has power to enter into the authority to take all actions required or permitted to be taken by it under, Borrower Documents and to perform and observe use the covenants and agreements on its part contained in, Project for the purpose set forth in this Agreement, the Indenture, the Loan Agreement, the Reimbursement Agreement and any other instrument or agreement relating thereto (collectively, by proper partnership action has authorized the "Closing execution and delivery of the Borrower Documents").
(b) It has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date for: (i) the execution, delivery and performance of the Closing Documents that have been executed in connection with the transactions contemplated hereby and by the Offering Documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby and by the Offering Documents; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United States.
(c) The Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been duly executed and delivered by it and constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws, or equitable principles relating to or limiting creditors’ rights generally.
(d) The execution and delivery of the Closing Documents that have been executed in connection with Borrower Documents, the consummation of the transactions contemplated hereby and by the Offering Documents, compliance with the terms, conditions or provisions thereofthereby, and consummation the fulfillment of the transactions herein terms and therein contemplated conditions thereof do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body conflict with or result in a breach of any of the termsterms or conditions of the Borrower's limited partnership agreement and other organizational documents, conditions any restriction or provisions ofany agreement or instrument to which the Borrower is now a party or by which it is bound or to which any property of the Borrower is subject, or and do not and will not constitute a default underunder any of the foregoing or a violation of any order, decree, statute, rule or regulation of any court or of any state or federal regulatory body having jurisdiction over the Borrower or its properties, including the Project, and do not and will not result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties property or assets of the Borrower pursuant to, contrary to the terms of any mortgage, resolution, instrument or agreement or instrument to which the Borrower is a party or by which it or any is bound.
(c) The design and plan of its properties is bound other than those provided for in or the Project comprise a housing development as contemplated by the Indenture.Act, specifically a development designed to be affordable by persons and families with adjusted gross income not in excess of the limits set forth in the Act; and subject to the other provisions of this Agreement, it is presently intended and reasonably expected that the equipment purchased from the proceeds of the Note will be permanently located and exclusively used on the Land and that the Borrower will operate the Project Buildings on the Land throughout the term of this Agreement in the normal conduct of the Borrower's business;
(d) The Note is issued within the exemption provided under Section 142(d) of the Code with respect to qualified residential rental projects; and "substantially all" of the proceeds of the Note will be used for expenditures chargeable to the capital account of the Project;
(e) There is public access to the Project; and, as of the date hereof, and to the Borrower's knowledge, the use of the Project as designed and proposed to be operated complies, in all material respects, with all presently applicable development, pollution control, water conservation and other laws, regulations, rules and ordinances of the federal government and the State and the respective agencies thereof and the political subdivisions in which the Project is located. All authorizationsnecessary and material approvals of and licenses, permits, consents and approvals offranchises from federal, notices tostate, registrations county, municipal or filings withother governmental authorities having jurisdiction over the Project have been, or actions in respect ofwill be, any governmental bodyobtained to acquire, agency or other instrumentality or court required in connection with construct, install, and operate the execution, delivery Project and performance by the Borrower of has obtained all necessary approvals to enter into, execute and perform its obligations under the Closing Documents that have been executed in connection with the consummation of the transactions contemplated hereby and by the Offering Documents have been obtained, given or taken and are in full force and effect; provided that no representation is made with respect to compliance with the securities or Blue Sky laws of the various states of the United StatesBorrower Documents.
(f) Other than as described The proceeds of the Note and the Senior Loan, together with any other funds to be contributed to the Project by the Borrower, loaned to the Borrower or otherwise in accordance with this Agreement, will be sufficient to pay the cost of acquiring and renovating the Project, and all costs and expenses incidental thereto, and the proceeds of the Note will be used only for the purposes contemplated hereby and allowable under the Act.
(g) The Borrower is not in the Offering Documentstrade or business of selling properties such as the Project and is acquiring the Project for investment purposes only or otherwise for use by the Borrower in its trade or business, there is and therefore the Borrower has no actionintention now or in the foreseeable future to voluntarily sell, suitsurrender or otherwise transfer, proceedingin whole or part, inquiry its interest in the Project, except as permitted by Section 6.08 hereof.
(h) There are no actions, suits, or investigation before or by any court, public board or body proceedings pending or, to the knowledge of the Borrower, threatened against or affecting it wherein an unfavorable decisionthe Borrower or any property of the Borrower in any court or before any federal, ruling state, municipal or finding is likely other governmental agency, which, if decided adversely to the Borrower would have a material adverse effect on the financial condition or solvency of upon the Borrower or upon the ability business or properties of the Borrower; and the Borrower is not in default with respect to perform its obligations under the Closing Documents.
(g) The Borrower makes no representation as to information in the Offering Documents relating to the Credit Provider and provided by the Credit Provider for inclusion therein.
(h) The Borrower has taken no action, and has not omitted to take any action, which action order of any court or omission to take action would in any way affect or impair the excludability of interest on the Bonds from gross income to the holders thereof for federal income tax purposesgovernmental agency.
(i) The Borrower will cooperate with is not in default in the Remarketing Agent in obtaining the qualification payment of the Bonds principal of or interest on any indebtedness for offering borrowed money nor in default under any instrument or agreement under and sale under subject to which any indebtedness for borrowed money has been issued.
(j) The Borrower has filed all federal and state income tax returns which, to the laws knowledge of such jurisdictions as the Remarketing Agent shall designate; provided that officers of the Borrower, are required to be filed and has paid all taxes shown on said returns and all assessments and governmental charges received by the Borrower shall not be required to incur the extent that they have become due.
(k) To the Borrower's knowledge, no public official of the Issuer has a conflict of interest arising from this Agreement nor will any expense, consent to service of process in any jurisdiction public official either directly or qualify to do business in any jurisdiction where it is not now so subjectindirectly benefit financially from this Agreement.
Appears in 1 contract
Samples: Subordinate Loan Agreement
