of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance reasonably satisfactory in all respects to the
Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and each Lender
as follows:
SECTION 4.1.
EXISTENCE; POWER.
THE BORROWER AND EACH OF ITS
SUBSIDIARIES (I) IS DULY ORGA­NIZED, VALIDLY EXISTING AND IN GOOD STANDING AS A
CORPORATION, PARTNERSHIP OR LIMITED LIABILITY COMPANY UNDER THE LAWS OF THE
JURISDICTION OF ITS ORGANIZATION, (II) ­HAS ALL REQUISITE POWER AND AUTHORITY TO
CARRY ON ITS BUSINESS AS NOW CONDUCTED, AND (III) IS DULY QUALIFIED TO DO
BUSINESS, AND IS IN GOOD STANDING, IN EACH JURISDICTION WHERE SUCH QUALIFICATION
IS REQUIRED, EXCEPT WHERE A FAILURE TO BE SO QUALIFIED COULD NOT REASONABLY BE
EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
SECTION 4.2.
ORGANIZATIONAL POWER; AUTHORIZATION.
THE EXECUTION,
DELIVERY AND PERFORMANCE BY THE BORROWER OF THE LOAN DOCUMENTS TO WHICH IT IS A
PARTY ARE WITHIN THE BORROWER'S ORGANIZATIONAL POWERS AND HAVE BEEN DULY
AUTHORIZED BY ALL NECESSARY ORGANIZATIONAL, AND IF REQUIRED, GENERAL PARTNER
ACTION. THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY THE BORROWER, AND
CONSTITUTES, AND EACH OTHER LOAN DOCUMENT TO WHICH THE BORROWER IS A PARTY, WHEN
EXECUTED AND DELIVERED BY THE BORROWER, WILL CONSTITUTE, VALID AND BINDING
OBLIGATIONS OF THE BORROWER, EN­FORCEABLE AGAINST IT IN ACCORDANCE WITH THEIR
RE­SPECTIVE TERMS, EXCEPT AS MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM, OR SIMILAR LAWS AFFECTING THE
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY.
SECTION 4.3.
GOVERNMENTAL APPROVALS; NO CONFLICTS.
THE EXECUTION,
DELIVERY AND PERFORMANCE BY THE BORROWER OF THIS AGREEMENT, AND OF THE OTHER
LOAN DOCUMENTS TO WHICH IT IS A PARTY (A) DO NOT REQUIRE ANY CONSENT OR APPROVAL
OF, REGISTRATION OR FILING WITH, OR ANY ACTION BY, ANY GOVERNMENTAL AUTHORITY,
EXCEPT THOSE AS HAVE BEEN OBTAINED OR MADE AND ARE IN FULL FORCE AND EFFECT, (B)
WILL NOT VIOLATE ANY REQUIREMENTS OF LAW APPLICABLE TO THE BORROWER OR ANY OF
ITS SUBSIDIARIES OR ANY JUDGMENT, ORDER OR RULING OF ANY GOVERNMENTAL AUTHORITY,
(C) WILL NOT VIOLATE OR RESULT IN A DEFAULT UNDER ANY INDENTURE, MATERIAL
AGREEMENT OR OTHER MATERIAL INSTRUMENT BINDING ON THE BORROWER OR ANY OF ITS
SUBSIDIARIES OR ANY OF ITS ASSETS OR GIVE RISE TO A RIGHT THEREUNDER TO REQUIRE
ANY PAYMENT TO BE MADE BY THE BORROWER OR ANY OF ITS SUBSIDIARIES AND (D) WILL
NOT RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN ON ANY ASSET OF THE
BORROWER OR ANY OF ITS SUBSIDIARIES, EXCEPT LIENS (IF ANY) CREATED UNDER THE
LOAN DOCUMENTS.
SECTION 4.4.
FINANCIAL STATEMENTS.
(A)
THE BORROWER HAS FURNISHED TO EACH LENDER (I) THE AUDITED
CONSOLIDATED BALANCE SHEET OF THE BORROWER AND ITS SUBSIDIARIES AS OF DECEMBER
31, 2005 AND THE RELATED CONSOLIDATED STATEMENTS OF INCOME, PARTNERS' EQUITY AND
CASH FLOWS FOR THE FISCAL YEAR THEN
49
ENDED AUDITED BY KPMG