of a
Facility LC with respect to each such Credit Extension shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied.
Any Lender may require a duly
completed compliance certificate in substantially the form of Exhibit B as a
condition to making a Credit Extension.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1
EXISTENCE AND STANDING.
EACH OF THE BORROWER AND ITS
SUBSIDIARIES IS A CORPORATION, PARTNERSHIP (IN THE CASE OF SUBSIDIARIES ONLY) OR
LIMITED LIABILITY COMPANY DULY AND PROPERLY INCORPORATED OR ORGANIZED, AS THE
CASE MAY BE, VALIDLY EXISTING AND (TO THE EXTENT SUCH CONCEPT APPLIES TO SUCH
ENTITY) IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF INCORPORATION OR
ORGANIZATION AND HAS ALL REQUISITE AUTHORITY TO CONDUCT ITS BUSINESS IN EACH
JURISDICTION IN WHICH ITS BUSINESS IS CONDUCTED, EXCEPT TO THE EXTENT THAT
FAILURE TO DO SO COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
5.2
AUTHORIZATION AND VALIDITY.
THE BORROWER HAS THE POWER AND
AUTHORITY AND LEGAL RIGHT TO EXECUTE AND DELIVER THE LOAN DOCUMENTS AND TO
PERFORM ITS OBLIGATIONS THEREUNDER.
THE EXECUTION AND DELIVERY BY THE BORROWER
OF THE LOAN DOCUMENTS AND THE PERFORMANCE OF ITS OBLIGATIONS THEREUNDER HAVE
BEEN DULY AUTHORIZED BY PROPER CORPORATE PROCEEDINGS, AND THE LOAN DOCUMENTS
CONSTITUTE LEGAL, VALID AND BINDING OBLIGATIONS OF THE BORROWER ENFORCEABLE
AGAINST THE BORROWER IN ACCORDANCE WITH THEIR TERMS, EXCEPT AS ENFORCEABILITY
MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY OR SIMILAR LAWS AFFECTING THE
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY.
5.3
NO CONFLICT; GOVERNMENT CONSENT.
NEITHER THE EXECUTION AND
DELIVERY BY THE BORROWER OF THE LOAN DOCUMENTS, NOR THE CONSUMMATION OF THE
TRANSACTIONS THEREIN CONTEMPLATED, NOR COMPLIANCE WITH THE PROVISIONS THEREOF
WILL VIOLATE, EXCEPT TO THE EXTENT THAT SUCH VIOLATION, ALONE OR IN THE
AGGREGATE, COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT,
(I) ANY LAW, RULE, REGULATION, ORDER, WRIT, JUDGMENT, INJUNCTION, DECREE OR
AWARD
37
BINDING ON THE BORROWER OR ANY OF ITS SUBSIDIARIES OR (II) THE BORROWER'S OR ANY
SUBSIDIARY'S ARTICLES OR CERTIFICATE OF INCORPORATION, PARTNERSHIP AGREEMENT,
CERTIFICATE OF PARTNERSHIP, ARTICLES OR CERTIFICATE OF ORGANIZATION, BYLAWS, OR
OPERATING OR OTHER MANAGEMENT AGREEMENT, AS THE CASE MAY BE, OR (III) THE
PROVISIONS OF ANY INDENTURE, INSTRUMENT OR AGREEMENT TO WHICH THE BORROWER OR
ANY OF ITS SUBSIDIARIES IS A PARTY OR IS SUBJECT, OR BY WHICH IT, OR ITS
PROPERTY, IS BOUND, OR CONFLICT WITH OR CONSTITUTE A DEFAULT THEREUNDER, OR
RESULT IN, OR REQUIRE, THE CREATION OR IMPOSITION OF ANY LIEN IN, OF OR ON THE
PROPERTY OF THE BORROWER OR A SUBSIDIARY PURSUANT TO THE TERMS OF ANY SUCH
INDENTURE, INSTRUMENT OR AGREEMENT.
NO ORDER, CONSENT, ADJUDICATION, APPROVAL,
LICENSE, AUTHORIZATION, OR VALIDATION OF, OR FILING, RECORDING OR REGISTRATION
WITH, OR EXEMPTION BY, OR OTHER ACTION IN RESPECT OF ANY GOVERNMENTAL OR PUBLIC
BODY OR AUTHORITY, OR ANY SUBDIVISION THEREOF, WHICH HAS NOT BEEN OBTAINED BY
THE BORROWER OR ANY OF